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Military Conflict and Conflict Resolution

Page history last edited by Sheridan Hay 14 years, 2 months ago

(1) Introduction

The textbook says it best:

"There is a tendency to judge international law based on its effectiveness in controlling conflict.  As a result, critics poinjt to every breach of the peace as evidence of the ineffectiveness of international actions and institutions.  However, international law has had many important successes, which unfortunately generate fewer headlines than the failures do.  International peacekeeping initiatives have avoided conflicts, ended wars, and aided reconstruction." (page 568)

 

One of the main purposes of international law is to create procedures and protocols that will facilitate a peaceful resolution of conflicts.

 

One of the most prominent organizations involved in settling international disputes is the United Nations.  It has such procedures and protocols embedded in its Charter:

 

Article 2(3):

All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered.

 

Article 2(4):

All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.

 

Articles 33 to 38 ("Chapter VI: Pacific Settlement of Disputes"):

 

Article 33:

  1. The parties to any dispute, the continuance of which is likely to endanger the maintenance of international peace and security, shall, first of all, seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice.
  2. The Security Council shall, when it deems necessary, call upon the parties to settle their dispute by such means.

 

Article 34:

The Security Council may investigate any dispute, or any situation which might lead to international friction or give rise to a dispute, in order to determine whether the continuance of the dispute or situation is likely to endanger the maintenance of international peace and security.

 

Article 35:

  1. Any Member of the United Nations may bring any dispute, or any situation of the nature referred to in Article 34, to the attention of the Security Council or of the General Assembly.
  2. A state which is not a Member of the United Nations may bring to the attention of the Security Council or of the General Assembly any dispute to which it is a party if it accepts in advance, for the purposes of the dispute, the obligations of pacific settlement provided in the present Charter.
  3. The proceedings of the General Assembly in respect of matters brought to its attention under this Article will be subject to the provisions of Articles 11 and 12.

 

Article 36:

  1. The Security Council may, at any stage of a dispute of the nature referred to in Article 33 or of a situation of like nature, recommend appropriate procedures or methods of adjustment.
  2. The Security Council should take into consideration any procedures for the settlement of the dispute which have already been adopted by the parties.
  3. In making recommendations under this Article the Security Council should also take into consideration that legal disputes should as a general rule be referred by the parties to the International Court of Justice in accordance with the provisions of the Statute of the Court.

 

Article 37:

  1. Should the parties to a dispute of the nature referred to in Article 33 fail to settle it by the means indicated in that Article, they shall refer it to the Security Council.
  2. If the Security Council deems that the continuance of the dispute is in fact likely to endanger the maintenance of international peace and security, it shall decide whether to take action under Article 36 or to recommend such terms of settlement as it may consider appropriate.

 

Article 38:

Without prejudice to the provisions of Articles 33 to 37, the Security Council may, if all the parties to any dispute so request, make recommendations to the parties with a view to a pacific settlement of the dispute.

 

Assignment: Questions

Answer questions in the comments section below.

1. Based on the Charter excerpts found above, (a) how are parties to a dispute expected to resolve their differences? (b) What methods are they encouraged to use? ( c) What role does the Security Council play in this process? 

2. (a) Under which article can the Security Council recommend procedures or methods of adjustment?  What is your opinion of this process? (b) Identify some factors that might hinder this process from stopping conflicts.


(2) An International Framework for Conflict Resolution: International Courts

click the link above for the assignment  


 

(3) When is a war a "just war"? 

 

When is it justifed to use force under current international law?

 

(i) self-defence

While there is broad acceptance of the principle that waging war on another state is an unacceptable act, there is also great acceptance of the notion that a nation has the right to use force to protect its own territory or people. The boundaries of one state's "territory" is often the subject of a debate, as is the type of action taken by a state in the name of"self-defence."  The justification for the invasions of Iraq and Afghanistan have both been hotly debated over the legitimacy of states' claims of "self-defence" and "pre-emptive self-defence."

 

(ii) authorized by UN Security Council resolution

As you read in the UN Charter articles above, the Security Council can pass a resolution that authorizes the use of force.  One of the earliest examples of this is Security Council Resolution 83 (1950), authorizing the use of force in Korea in 1950.

 

The rule of "self-defence" has proven to be a difficult rule to apply.

The international commuity has developed a number of legal instruments, including:

 

In some cases, clarification has been needed on the scope of self-defence by the courts, particularly the International Court of Justice (ICJ).

 

AssignmentView the ICJ case Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. the United States of America) (1984-1991). 

Answer questions in the comments section below.

(i) How did the defendants justify their actions?

(ii) How did the Court respond?  Did they accept the justification?

 

The international community's position is not always consistent, adding to the difficultly of applying any rule.  In 1981, when Israel attacked an Iraqi nuclear reactor, the Security Council did not accept Israel's claim that it was acting under self-defence.  However, a previous pre-emptive action by Israel against its neighbouring states before the 1967 war met with no complaints by the international community.

 

The ICJ could also not come to a unanimous decision on the use of nuclear weapons in the context of self-defence.  In the Legality of the Threat or Use of Nuclear Weapons (1994-1996) Advisory Opinion, the court offered the following opinion:

"in view of the current state of international law, and of the elements of fact at its disposal, the Court cannot conclude definitively whether the threat or use of nuclear weapons would be lawful or unlawful in an extreme circumstance of self-defence, in which the very survival of a State would be at stake."

 

One of the most recent examples of claiming self-defence for an attack on another state is the invasion of Iraq in 2003.  Although the Security Council never authorized the attack, there has been no penalty or sanction on the United States or other members of the "coalition of the willing."  In fact, in the case of the Iraq invasion (to mae a "regime change" of an unpopular dictator) and other conflicts, including the NATO intervention in Kosovo (1999) and the US interventions in Grenada (1983) and Panama (1989), there has been some moral acceptance of these actions by other members of the international community.  Some have argued that this should be an additional category of justification for war.

 

Reading Assignment"The United States:  Going It Alone" (textbook, pages 581-584)

Answer questions 1 to 4, page 584, in the comments section below or in your notebook.


(4) How are armed conflicts prevented within the international community?

 

 

Worksheet Assignment:  The International Community and the Prevention of Armed Conflicts

click the hyperlink for the assignment

 

 

One of the most pressing security concerns the international community presently has is the existence of weapons of mass destruction (including long-range missiles, nuclear, chemical, and biological weapons).  The question of which countries possess them and the political stability and willingness of that country to remain peaceful is an ongoing one, as is whether terrorist or other armed groups are in possession of such weapons and willing to use them. 

 

What are the concerns?

 

If a state possesses weapons, one question is: under what circumstances will that country use them and against which other country?  Another question is:  under what circumstances will that country sell weapons to another country or group (e.g. terrorist or military group)?  There is also the question of the country's stability.  Could it easily become a totalitarian or military regime or be on the brink of war with another state? 

 

The question of what danger arises in the instance of a terrorist or military group having such weapons is fairly self-evident - the threat of weapons being held by a group that is willing to use any means necessary to reach their objective and having no responsibilities as a sovereign nation or member of the international community is one that must be avoided.  The United Nations' Security Council Resolution 1373 (2001) defines the obligations of member states with respect to the prevention of terrorism:

 

Reaffirming the need to combat by all means, in accordance with the Charter of the United Nations, threats to international peace and security caused by terrorist acts,

  

Reaffirming declaration of October 1970 (resolution 2625 (XXV)) and reiterated by the Security Council in its resolution 1189 (1998) of 13 August 1998, namely that every State has the duty to refrain from organizing, instigating, assisting or participating in terrorist acts in another State or acquiescing in organized activities within its territory directed towards the commission of such acts,

 

Notes with concern the close connection between international terrorism and transnational organized crime, illicit drugs, money-laundering, illegal armstrafficking, and illegal movement of nuclear, chemical, biological and other potentially deadly materials, and in this regard emphasizes coordination of efforts on national, subregional, regional and international levels in order to strengthen a global response to this serious challenge and threat tointernational security;

 

The challenge is that national sovereignty must be respected above all.  That being the case, the international community has no authority over the individual actions of a state and, in the interest of global cooperation, should not interfere in the affairs of another country, right? 

 

One response to that line of thinking is that when the actions of another country impact on your country, then you have the right to take action - that is really the basis on which international law functions and conflict is resolved.

 

(5) When conflict leads to war

 

While war is not the result hoped for, there are times when it is the conflict does end that way.  Despite it being a time of war, international conventions and agreements still apply.  The most famous agreement involving wartime are the Geneva Conventions, that provide a framework of expectations for warring parties regarding, among other things, the treatment of civilians, prisoners, and the wounded.

 

Assignment Name four duties of an occupying power under international law (under the Geneva Conventions) in the comments section below.

 

But what if an occupying power ignores the rules?  There is little the international community can do then apply economic or political sanctions on that country or take the case to international court.

 

Assignment:  Read "You Decide:  US  Treatment of Suspected Terrorists" (page 599-600 in the textbook) and answer questions 1 to 4, page 600 in your notebook.

 

CLN4U1 International Law

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