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International Law and Armed Conflict:Exploring the Faultlines


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International Humanitarian Law Series

VOLUME 15

Editors-in-ChiefProfessor Christopher Greenwood

Professor imothy L.H. McCormack

Editorial Advisory BoardProfessor Georges Abi-Saab

H.E. Judge George H. AldrichMadame Justice Louise Arbour

Professor Ove BringProfessor Antonio Cassese

Professor John DugardProfessor Dr. Horst Fischer

Dr. Hans-Peter GasserProfessor Leslie C. Green

H.E. Judge Geza HerczeghProfessor Frits Kalshoven

Professor Ruth LapidothProfessor Gabrielle Kirk McDonaldH.E. Judge Teodor Meron

Captain J. Ashley RoachProfessor Michael Schmitt

Professor Jiri oman

Te International Humanitarian Law Series is a series of monographs and edited vol-umes which aims to promote scholarly analysis and discussion of both the theory andpractice of the international legal regulation of armed conflict.Te series explores substantive issues of International Humanitarian Law including, protection for victims of armed conflict and regulation of the means and methods

of warfare

questions of application of the various legal regimes for the conduct of armed con-flict

issues relating to the implementation of International Humanitarian Law obliga-tions

national and international approaches to the enforcement of the law and

the interactions between International Humanitarian Law and other related areasof international law such as Human Rights, Refugee Law, Arms Control andDisarmament Law, and International Criminal Law.

Te titles in this series are listed at the end of this volume.


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Professor Yoram Dinstein


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International Law and ArmedConflict: Exploring the Faultlines

Essays in Honour of Yoram Dinstein

edited by

Michael N. Schmitt and Jelena Pejic

LEIDEN BOSON2007


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:

by Koninklijke Brill , Leiden, Te Netherlands.Koninklijke Brill incorporates the imprints Brill, Hotei Publishers, Publishers,Martinus Nijhoff Publishers and .

http://www.brill.nl

All rights reserved. No part of this publication may be reproduced, stored in a retrieval system,or transmitted in any form or by any means, electronic, mechanical, photocopying, microfilm-ing, recording or otherwise, without written permission from the Publisher.

Authorization to photocopy items for internal or personal use is granted by Brill providedthat the appropriate fees are paid directly to Te Copyright Clearance Center, RosewoodDrive, Suite , Danvers , .Fees are subject to change.

Cover photo: Afghanistan, Khandahar. After a road bomb has destroyed an US Armyvehicule, troops are patrolling the area to look for clues. /, eun Anthony

Printed and bound in Te Netherlands.

Printed on acid-free paper.

A ... record for this book is available from the Library of Congress.


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able of Contents

Preface xi

Professor Yoram Dinstein; Curriculum Vitae xv

Professor Yoram Dinstein; List of Academic Publications xixAbout the Contributors xxxiii

A Revival of the Just War Teory? Ivan Shearer

Rethinking Collective Security Tomas Franck

opographies of Force Dino Kritsiotis

Claims to Pre-emptive Uses of Force: Some rends andProjections and Teir Implications for World Order W. Michael Reisman and Andrea Armstrong

Te emporal Dimension of Self-Defense: Anticipation, Pre-emption, Prevention and Immediacy erry D. Gill

Responding to ransnational errorism under theJus adBellum: A Normative Framework

Michael N. Schmitt

Is US Adherence to the Rule of Law in International AffairsFeasible?

John F. Murphy

Te Military Action in Iraq and International Law Ruth Wedgwood


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ixable of Contents

Benevolent Tird States in International Armed Conflicts:Te Myth of the Irrelevance of the Law of Neutrality Wolff Heintschel von Heinegg

Index


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Preface

On behalf of the contributors, we offer this Volume in friendship, respect andadmiration for Professor Yoram Dinstein. No-one familiar with his wide-rangingwork in the field can feel anything but awe for his contribution to the clarifica-

tion and development of international law. o us, Yoram has also been a selfless,albeit as anyone who knows him well understands demanding, mentor, onewho has sharpened our understanding of, and ability to think critically about, thelaw. Along with many others, we have also benefited over the years from his eru-dition on a range of subjects well beyond international law.

Yoram Dinsteins opus, while international in breadth and effect, is deeplyrooted in his beloved Israel. Born in el-Aviv in , he obtained his legal edu-cation at the Hebrew University in Jerusalem (where he graduated summa cumlaude) and New York University. Professor Dinstein began his professional career

in Israels Foreign Service in which he served as Consul of Israel in New YorkCity and with Israels Permanent Mission to the United Nations. Even subse-quent to becoming a full-time academic, Professor Dinstein represented his coun-try in various internationalfora, ranging from the UN Commission on HumanRights and the International Conferences of the Red Cross and Red Crescentto Interpol. In -, he also served as Counsel in the abaArbitration withEgypt.

It is as an educator and academic, however, that Professor Dinstein has leftan indelible mark. In Israel, he was Professor of International Law, Dean of theFaculty of Law, Rector and President of el-Aviv University. While President,

he also chaired Israels Committee of Heads of Universities (VERA). oday, heholds the title of Yanowicz Professor of Human Rights at el-Aviv University.

But Professor Dinsteins influence extends far beyond the borders of Israel.Indeed, his international academic and teaching engagements are too numer-ous to be enumerated here. Suffice it to mention that he was twice appointedthe Charles H. Stockton Professor of International Law at the United StatesNaval War College, was a Humboldt Fellow at the Max Planck Institute forComparative Public Law and International Law in Heidelberg, and has been aVisiting Professor at the DePaul University in Chicago, the University of oronto

and New York University. Te University of Buenos Aires, the University ofChile and the Hebrew Union College have conferred honorary doctorates on


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xii Preface

him, while the National University of Mexico (UNAM) awarded him the title ofDistinguished Professor.

His career is also marked by service in the development and dissemination ofinternational law. Professor Dinstein serves as Vice-President of Israels nationalbranch of the International Law Association and of the Israeli United NationsAssociation, as well as a member of the Council of the International Institute ofHumanitarian Law in San Remo, Italy. He has also been active in many interna-tional research projects, including that which resulted in the San Remo Manualon International Law Applicable to Armed Conflicts at Sea. Professor Dinstein pres-ently directs an international experts group drafting a similar manual on air andmissile warfare.

In recognition of his contributions to the field of international law, in

Professor Dinstein became a Member of the Institut de Droit International(Institute of International Law), a group of the worlds leading international law-yers elected by cooptation for life.

While Professor Dinstein has explored many issues of international law inhis scholarly research and writing, it may be said that the focal points of his workhave been thejus ad bellumand thejus in bello. Te former regulates when forcemay be used in international relations, whereas the latter governs how such forcemay be used and extends protection to both persons who are not or no longerparticipating in hostilities and to civilian objects. Tese areas of public inter-

national law are central to the way in which the world is ordered, for they deal indirectly and directly with questions of life and death.Regrettably, the reasons wars are waged and the way in which they are con-

ducted are so closely linked to national interests, or skewed perceptions thereof,that international law rules regulating force have too often been observed only inthe breach. Partly as a result, international law has been famously condemned asexisting only at the vanishing point of law. Professor Dinsteins lasting contri-bution to the field is that his writings on both thejus ad bellumand thejus in belloeffectively and definitively dispel that claim.

It is unimaginable that anyone addressing such matters could do so without

resorting to War, Aggression and Self-Defence, Professor Dinsteins classic workon the jus ad bellum(now in its fourth edition), Te Conduct of Hostilities underthe Law of International Armed Conflict, his recently published study of thejus inbello, or theIsrael Yearbook on Human Rights, which he has edited for over threedecades. Indeed, it may be fairly said that a scholarly work in the area which con-tains no Dinstein cite is, quite simply, incomplete. Te logic, clarity and prac-tical groundedness of his work, whether one accepts every tenet or not, make itan unavoidable and timeless body of reflection and analysis for international lawscholars and practitioners alike.

Tis Volume honours Professor Dinstein by addressing both the jus adbellumand thejus in bello. As a result of recent events on the international scene,no areas of international law are being debated today with greater fervor. New


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xiiiPreface

prescriptive dilemmas, real or imagined, as well as old controversies repackagedas new ones, have burst onto center stage in discourse about whether and how the

norms governing resort to force and armed conflict should be (re)ordered. Tus,our aim with this Volume has been to explore the faultlines that lie both betweenand within thejus ad bellumand thejus in bello.

A distinguished group of experts wholeheartedly agreed to express tributeto Professor Dinstein by contributing to the Volume. We sincerely thank each ofthem for their contribution. Te authors include scholars and practitioners, a par-ticularly appropriate combination in light of the intellectual depth and practicalimpact of Yorams work. Tey cut across generations, from recognized authoritiesin international law to emerging thinkers, thereby reflecting the influence he hasexerted on the international law community for decades, and which he will surely

continue to exert in the time to come. It is a pleasure and an honour to commendthis book to Professor Dinsteins, and others, attention.

Jelena Pejic Geneva

Michael N. Schmitt Newport


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Curriculum Vitae

Place and Date of Birth: el-Aviv (Israel), January

Degrees: M.Jur. () Hebrew University, Jerusalem (summa

cum laude) LL.M. () New York University Dr.Jur. () Hebrew University, Jerusalem

Awards: Arlosoroff Prize () Andrei Sakharov Fellowship ()

Academic Activities:

- Assistant, Faculty of Law, Hebrew University, Jerusalem- Lecturer in International Law, Faculty of Law, Hebrew

University, Jerusalem- Director, Course in Legal Administration (for African

judges and lawyers), Faculty of Law, Hebrew University,Jerusalem

- Senior Lecturer in International Law, Faculty of Law,el-Aviv University

- Associate Professor of International Law, Faculty of

Law, el-Aviv University- (Full) Professor of International Law, Faculty of Law,

el-Aviv University- Visiting Professor, Faculty of Law, University of

oronto- Dean, Faculty of Law, el-Aviv UniversitySince Yanowicz Professor of Human Rights, el-Aviv

University

- Rector, el-Aviv University- Meltzer Visiting Professor, School of Law, New YorkUniversity


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xvi CV Professor Yoram Dinstein

- Pro-Rector, el-Aviv University Distinguished Professor, Universidad Nacional

Autonoma de Mexico- President, el-Aviv University, Chairman, Israels Committee of Heads of Universities

(VERA) Honorary Doctorate, University of Buenos Aires Honorary Doctorate, University of Chile Honorary Doctorate, Hebrew Union College-, - Stockton Professor of International Law, US Naval War

College (Newport, RI)

- Humboldt Fellow, Max Planck Institute forComparative Public Law and International Law,Heidelberg

Professor Emeritus, el-Aviv UniversitySince Project Director, International Humanitarian Law in

Air and Missile Warfare, Program on HumanitarianPolicy and Conflict Research, Harvard University

Visiting Professor, Hague Academy of InternationalLaw

Non-Academic Activities:- Law Clerk, Supreme Court of Israel, Jerusalem- Cadet, Israel Ministry of Foreign Affairs, Jerusalem-, - Adviser, Permanent Mission of Israel to the United

Nations, New York- Deputy Head, Office of the Director General, Israel

Ministry of Foreign Affairs, Jerusalem

, -, , Alternate Representative and Observer of Israel, UN-, Commission on Human Rights, New York and Geneva, Alternate Member and Observer of Israel, UN Sub-

Commission on Prevention of Discrimination andProtection of Minorities, New York

, Observer of Israel, UN Economic and Social Council,Geneva and New York

Since Member of the Israel Bar- Alternate Representative of Israel, Tird Committee,

UN General Assembly, New York- Consul of Israel, New York


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xviiCV Professor Yoram Dinstein

Since Vice-President, Israel United Nations Association- Chairman, Israel National Section, Amnesty

International- Associate Member,Institut de Droit International- Counsel for Israel, aba Arbitration with Egypt- Member, Executive Council, American Society of

International LawSince Member,Institut de Droit InternationalSince Vice-President, Israel Branch, International Law

AssociationSince Member, Council, San Remo International Institute of

Humanitarian Law


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List of Academic Publications

I Books

. Te Defence of Obedience to Superior Orders in International Law,

(a) In EnglishLeyden, Sijthoff, xvi + pp. ().

(b) In HebrewJerusalem, Magnes Press, pp. ().

. International Law and the State, el-Aviv, Schocken, pp. () (Hebrew).. Te Internal Powers of the State, el-Aviv, Schocken, pp. () (Hebrew).. International reaties,

el-Aviv, Schocken, pp. () (Hebrew).. International Claims, el-Aviv, Schocken, pp. () (Hebrew).. Non-State International Law, el-Aviv, Schocken, pp. () (Hebrew).. Te Laws of War, el-Aviv, Schocken, pp. () (Hebrew).. War, Aggression and Self-Defence, First Edition Cambridge, Grotius, xxx + pp. (). Second Edition Cambridge University Press, xxxi + pp. ().

Tird Edition Cambridge University Press, xxviii + pp. (). Portuguese translation, Manole (Brazil), xxxviii + pp. (). Fourth Edition Cambridge University Press, xxv + pp. ().. Te Conduct of Hostilities under the Law of International Armed Conflict,

Cambridge University Press, xx + pp. ().

II Monographs

. Consular Immunity from Judicial Process, with Particular Reference to Israel,

Jerusalem, Institute for Legislative Research and Comparative Law, xiv + pp. ().


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xx List of Academic Publications Professor Yoram Dinstein

. Te Fundamentals of Law, el Aviv, University on the Air Series, pp. () (Hebrew).

ranslated into Arabic by the Institute for Israeli Arab Studies ().

III Chief Editor

. Israel Yearbook on Human Rights, Vols. - (-).. Models of Autonomy, New Brunswick/London, ransaction Books ().. International Law at a ime of Perplexity (Essays in Honour of Shabtai

Rosenne),

Dordrecht/Boston/London, Nijhoff ().. Te Protection of Minorities and Human Rights, Dordrecht/Boston/London, Nijhoff ().. War Crimes in International Law, Te Hague/Boston/London, Nijhoff ().

IV Articles and Notes

. Te Responsibility of Foreign Consuls in Israel for Semi-Official Acts,

Hapraklit- () (Hebrew).. Diplomatic Immunity in England and in Israel, Hapraklit- () (Hebrew).. Consular Immunity and Non-Consular Acts, Hapraklit- () (Hebrew).. Diplomatic Immunity from Jurisdiction Ratione Materiae, International and Comparative Law Quarterly- ().. Par in Parem Non Habet Imperium, Israel Law Review- ().. Legal Aid to Developing Countries,

Israel Law Review- ().. Te Hijacking of the El Al Plane: Piracy or Act of State?, Hapraklit- () (Hebrew).. Te Legal Balance of Force and Counter-Force in the Middle East

oday, Hammarskjold Forum- ().. Te Arab-Israeli Crisis: Legal Issues and Possible Solutions, International Lawyer- ().. Te Legal Issues of Para-War and Peace in the Middle East,

St. Johns Law Review- (). ReprintedNew York Law Journal, & January ; Also reprinted Te Arab-Israeli Conflict- ( J.N. Moore ed., ).


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xxiiiList of Academic Publications Professor Yoram Dinstein

. Te New Geneva Protocols: A Step Forward or Backward?, Year Book of World Affairs- ().

. Cultural Rights, Israel Yearbook on Human Rights- (). ReprintedLes Droits de lHomme, Droits Collectifs ou Droits Individuels-

().. Self-Determination and the Middle East Conflict, Self-Determination: National, Regional and Global Dimensions - (Y.

Alexander & R.A. Friedlander eds., ).. International Guarantees and the Middle East Conflict,

(a) In English Te Middle East and the United States - (H. Shaked & I.

Rabinovich eds., ).(b) In Hebrew ranslation of this book, - ().

. Te Laws of War at Sea, Israel Yearbook on Human Rights- ().. Te Expulsion of Mayors from Judea, el-Aviv University Law Review- () (Hebrew).. errorism and Human Rights, Festschrift in Honor of Dr. George S. Wise- ().

. Autonomy, Models of Autonomy- (Y. Dinstein ed., ).. Te Right to Life, Physical Integrity, and Liberty, Te International Bill of Human Rights: Te Covenant on Civil and Political

Rights-, - (L. Henkin ed., ).. Te Laws of War in the Air, Israel Yearbook on Human Rights- ().. Comment on Interstate Armed Conflict, American University Law Review- ().. (a) Te Parliamentary Foreign Affairs Committee in Israel,

Parliamentary Foreign Affairs Committees: Te National Setting - (A.Cassese ed., ).

(b) Discussion Te Impact of Foreign Affairs Committees on Foreign Policy -, - (A.

Cassese ed., ).. Items inEncyclopedia of Public International Law(R. Bernhardt ed., ): vol.

(a) Armistice, pp. -.(b) Booty in Land Warfare, pp. -.

(c) Flag of ruce, pp. -.(d) Military Necessity, pp. -.


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xxiv List of Academic Publications Professor Yoram Dinstein

vol. (e) Neutrality in Sea Warfare, pp. -.

(f ) Prisoners of War, pp. -. (g) Sea Warfare, pp. -. (h) Warfare, Methods and Means, pp. -.. Refugees and the Law of Armed Conflict,

Israel Yearbook on Human Rights- ().. Te Laws of Land Warfare, Israel Yearbook on Human Rights- ().. Human Rights in Armed Conflict: International Humanitarian Law, Human Rights in International Law: Legal and Policy Issues - (.

Meron ed., ).

. Te Release of Prisoners of War, Studies and Essays on International Humanitarian Law and Red Cross

Principles in Honour of Jean Pictet- (C. Swinarski ed., ).. Comments on Fourth Interim Report of the ILA Committee on

International errorism (), errorism- ().. A Realistic Approach to International Law, Te Spirit of Uppsala- (A. Grahl-Madsen & J. oman eds., ).. Te Laws of Neutrality,

(a) In English Israel Yearbook on Human Rights- ().(b) In Spanish Las Leyes de la Neutralidad, Anuario Mexicano de Relaciones Internacionales - ().

. Value Added ax in the Administered erritories, el-Aviv University Law Review- () (Hebrew).. Te Maintenance of Public Order and Life in the Administered

erritories, el-Aviv University Law Review - () (Hebrew).

. Discrimination and International Human Rights, Israel Yearbook on Human Rights- ().. Te Interaction of International Law and Justice, Israel Yearbook on Human Rights- ().. International Law as a Primitive Legal System, New York University Journal of International Law and Politics - (-

).. Te International Legal Response to errorism, International Law at the ime of Its Codification- (Essays in Honour

of Roberto Ago, ).. Anti-Semitism, Anti-Zionism and the United Nations, Israel Yearbook on Human Rights- ().


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xxvList of Academic Publications Professor Yoram Dinstein

. Reunion of Families in the Administered erritories, el-Aviv University Law Review- () (Hebrew).

. Deportations from Administered erritories, el-Aviv University Law Review- () (Hebrew).. Te Israel Supreme Court and the Law of Belligerent Occupation:

Reunification of Families, Israel Yearbook on Human Rights- ().. Te aba Arbitration Award, el-Aviv University Law Review- () (Hebrew).. Te Distinction between Unlawful Combatants and War Criminals, International Law at a ime of Perplexity - (Essays in Honour of

Shabtai Rosenne, Y. Dinstein ed., ).

. axation under Belligerent Occupation, Das Menschen Recht zwischen Freiheit und Verantwortung -(Festschrift

fr Karl Josef Partsch,).. errorism as an International Crime, Israel Yearbook on Human Rights- ().. Freedom of Religion and the Protection of Religious Minorities, Israel Yearbook on Human Rights- (). ReprintedTe Protection of Minorities and Human Rights- ().. Siege Warfare and the Starvation of Civilians,

Humanitarian Law of Armed Conflict: Challenges Ahead - (Essays inHonour of Frits Kalshoven, A. Delissen & G. anja eds., ).. TeErga OmnesApplicability of Human Rights, Archiv des Vlkerrechts- ().. Multinational, Federal and Confederal Arrangements, el-Aviv University Law Review- () (Hebrew). Shorter Version Reprinted Gift for Isaac- (Essays in Honour of Justice

Isaac Shilo, A. Barak & M. Shava eds., ) (Hebrew).. International Humanitarian Law, International Human Rights Law: Teory and Practice- (I. Cotler &

F.P. Eliadis eds., ). Reprinted Hacia un Nuevo Orden Internacional y Europeo - (Etudios en

Homenaje al Profesor Don Manuel Diez de Velasco, ).. Te Degree of Self-Rule of Minorities in Unitarian and Federal States, Peoples and Minorities in International Law- (C. Brlmann, R. Lefeber

& M. Zieck eds., ).. Items in Te Oxford Companion to Politics of the World ( J. Krieger ed., st

ed., ): (a) Nuremberg rials, pp. -.

(b) War Crimes, pp. -. (c) War, Rules of , pp. -.


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xxvi List of Academic Publications Professor Yoram Dinstein

. Te Reform of the Protection of Human Rights during Armed Conflictsand Periods of Emergency and Crisis,

(a) In English Te Reform of International Institutions for the Protection of HumanRights- (La Laguna University, ).

(b) In French La Rforme de la Protection des Droits de lHomme pendant les Conflits

Arms et les Priodes dUrgence et de Crise, La Rforme des Institutions Internationales de Protection des Droits de

lHomme- (Universit de La Laguna, ).. Te Extra-erritorial Jurisdiction of States: Te Protective Principle, (II)Annuaire de l Institut de Droit International- ().

. Some Reflections on Extradition, German Yearbook of International Law- ().. Te Israel Supreme Court and the Law of Belligerent Occupation:

Deportations, Israel Yearbook on Human Rights- ().. Te Arab-Israeli Conflict from the Perspective of International law, University of New Brunswick Law Journal- ().. Self-Determination Revisited, International Law in an Evolving World - (Liber Amicorum Eduardo

Jimnez de Archaga, M. Rama-Montaldo ed., ).. Te Distinctions between War Crimes and Crimes against Peace, Israel Yearbook on Human Rights- (). ReprintedWar Crimes in International Law- ().. Te Implementation of International Human Rights Recht zwischen Umbruch und Bewahrung - (Festschrift fr Rudolf

Bernhardt, U. Beyerlin ed., ).. Autonomy and Legal Status: A Rejoinder, Security Dialogue- ().. Democracy and the Individual,

Federico Mayor Amicorum Liber- ().. Te Legal Lessons of the Gulf War, Austrian Journal of Public and International Law- ().. Religious Freedom in the Mediterranean Basin, Human Rights in the Mediterranean Area- (C. Zanghi, L. Panella &

R. La Rosa eds., ). Revised ()I Diritti dell Uomo- ().. State Sovereignty and the Rights of Minorities, New Forms of Discrimination- (L.A. Sicilianos ed., ).


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xxviiList of Academic Publications Professor Yoram Dinstein

. Ratification and Universality, Te Convention on the Prohibition and Elimination of Chemical Weapons: A

Breakthrough in Multilateral Disarmament - (Hague Academy ofInternational Law, D. Bardonnet ed., ).. International Law, Encyclopaedia Hebraica, Addenda volume , - (M. Feldman ed., )

(Hebrew).. Te Israel Supreme Court and the Law of Belligerent Occupation: Article

of the Hague Regulations, Israel Yearbook on Human Rights- ().. Crimes against Humanity, Teory of International Law at the Treshold of the st Century- (Essays

in Honour of Krzysztof Skubiszewski, J. Makarczyk ed., ).. Te Dilemmas of Democracy, Israel Yearbook on Human Rights- ().. Comments on Protocol I, International Review of the Red Cross- ().. Te Laws of Air, Missile and Nuclear Warfare, Israel Yearbook on Human Rights- ().. Diplomatic Protection of Companies under International Law, International Law: Teory and Practice - (Essays in Honour of Eric

Suy, K. Wellens ed., ).. Te Universality Principle and War Crimes, U.S. Naval War College International Law Studies- (Te Law of Armed

Conflict: Into the Next Millennium, M.N. Schmitt & L.C. Green eds., ).. Te International Legal Dimensions of the Arab-Israeli Conflict, Israel among the Nations- (.M.C. Asser Instituut, A. Kellermann, K.

Siehr & . Einhorn eds., ).. Te International Legal Status of the West Bank and the Gaza Strip

, Israel Yearbook on Human Rights- ().

. Te Israel Supreme Court and the Law of Belligerent Occupation:Demolitions and Sealing Off of Houses,

Israel Yearbook on Human Rights- ().. Te Right to Humanitarian Assistance, Human Rights at the Dawn of the wenty-First Century- (Karel Vasak

Amicorum Liber, F. Mayor ed., ). Revised Naval War College Review- ().. Defences, Substantive and Procedural Aspects of International Criminal Law (Te

Experience of International and National Courts) - (G.K. McDonald &O. Swaak-Goldman eds., ).


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xxviii List of Academic Publications Professor Yoram Dinstein

. Crimes against Humanity after adic, Leiden Journal of International Law- ().

. Te Initiation, Suspension, and ermination of War, U.S. Naval War College International Law Studies - (InternationalLawAcross the Spectrum of Conflict: Essays in Honor of L.C. Green, M.N.Schmitt ed., ).

. Te Collective Human Rights of Religious Groups: Genocide andHumanitarian Intervention,

Israel Yearbook on Human Rights- ().. echnological Development, Equality and Non-Discrimination, Scientific and echnological Developments and Human Rights - (L.-A.

Sicilianos & M. Gavouneli eds., ).

. Items in the Oxford Companion to Politics of the World(J. Krieger ed., nded.,):

(a) Nuremberg rials, pp. -. (b) War Crimes, pp. , . (c) War Crimes ribunals, pp. -. (d) Warfare, Rules of , pp. -.. Protection of the Environment in International Armed Conflict,

Max Planck Yearbook of United Nations Law- ().. Legitimate Military Objectives under the CurrentJus in Bello,

Israel Yearbook on Human Rights- (). Reprinted U.S. Naval War College International Law Studies- (Legaland Ethical Lessons of NAOs Kosovo Campaign, A.E. Wall ed., ).

. Computer Network Attacks and Self-Defense, U.S. Naval War College International Law Studies- (Computer Network

Attack andInternational Law, M.N. Schmitt & B.. ODonnell eds., ).. Deprivation of Property of Foreigners under International Law, Liber Amicorum Judge Shigeru Oda- (N. Ando, E. McWhinney & R.

Wolfrum eds., ).. Te Evolution of Crimes against Humanity, International Criminal Court: A New Dimension in International Justice- (S.

Perrakis ed., ).. Unlawful Combatancy, Israel Yearbook on Human Rights- (). Reprinted U.S. Naval War College International Law Studies -

(International Law and the War on errorism, F.L. Borch and P.S. Wilsoneds., ).

. Ius ad BellumAspects of the War on errorism, errorism and the Military: International Legal Implications- (W.P. Heere

ed., ).. Jus in BelloIssues Arising in the Hostilities in Iraq in , Israel Yearbook on Human Rights- ().


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xxixList of Academic Publications Professor Yoram Dinstein

. Te Protection of Cultural Property and Places of Worship in InternationalArmed Conflicts,

Studi di Diritto Internazionale in Onore di Gaetano Arangio-Ruiz-().. Comments on War, Harvard Journal of Law & Public Policy- ().. Collateral Damage and the Principle of Proportionality, New Wars, New Laws? Applying the Laws of War in stCentury Conflicts-

(D. Wippman & M. Evangelista eds., ).. Restatements of International Law by echnical/Informal Bodies, Developments of International Law in reaty Making- (R. Wolfrum &

V. Rben, ).

. Article of Additional Protocol I, Australian Year Book of International Law (A Collection of Essays to

Honour Professor I.A. Shearer) - ().. Te Gulf War, - (and Still Counting), Israel Yearbook on Human Rights- ().. Sovereignty, the Security Council and the Use of Force, Redefining Sovereignty: Te Use of Force after the Cold War- (M. Bothe,

M.E. OConnell & N. Ronzitti eds., ).

V Published Lectures and Proceedings of Conferences

. International Cooperation in the Prevention and Suppression oferrorism,

Proceedings of the American Society of International Law -, ().

. Te Jurisprudence of the Court in the Nicaragua Decision, Proceedings of the American Society of International Law-, -

().. Existing Legal Constraints on Nuclear Proliferation,

Lawyers and the Nuclear Debate-, , - (M. Cohen & M.E. Gouineds., ).

. Symposium on Human Rights and Israeli Rule in the erritories: OpeningRemarks, New York University Journal of International Law and Politics -(-).

. Te Right of Self-Defence against Armed Attacks,International errorism: Lund Seminar- (M.D. Sandbu & P. Nordbeckeds., ).

. Developments in the Law of Naval Warfare: Custom or Codification?, Proceedings of the American Society of International Law ().


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xxx List of Academic Publications Professor Yoram Dinstein

. Legal Aspects of the Security of International Aviation,error in the Skies: Aviation Security: Proceedings of the First International

Seminar on Aviation Security- (A. Lewis & M. Kaplan eds., ).. National Implementation of International Humanitarian Law, Proceedings of an International Colloquium Held at Bad Homburg -, ,

-, -, - (M. Bothe ed., ).. Major Contemporary Issues in Extradition Law,

Proceedings of the American Society of International Law- ().. Siracusa International Seminar on Extradition, International Review of Penal Law- ().. Implementing Limitations on the Use of Force: Te Doctrine of

Proportionality and Necessity,

Proceedings of the American Society of International Law- ().. Human Rights: Implementation through the UN System, Proceedings of the American Society of International Law-, -

().. Is Tere a Right to Secede?, Proceedings of the American Society of International Law-, -

().. Te Middle East Peace Process, Proceedings of the American Society of International Law- ().

. Te Tirteenth Waldemar A. Solf Lecture in International Law, Military Law Review- ().. Humanitarian Law on the Conflict in Afghanistan, Proceedings of the American Society of International Law- ().. Legal and Ethical Lessons of NAOs Kosovo Campaign Discussion, U.S. Naval War College International Law Studies -, - (A.E.

Wall ed., ).. Ius ad Bellum and Ius in Bello Discussion, errorism and the Military: International Legal Implications -, -

(W.P. Heere ed., ).

. Self-Defense in an Age of errorism, Proceedings of the American Society of International Law- ().. International Humanitarian Law and Modern Warfare, Proceedings of the International Expert Conference on Computer Network

Attacks and the Applicability of International Humanitarian Law - (K.Bystrm ed., ).

. International Law and the War on errorism, International Law Studies, -, -, , - (F.L. Borch &

P.S. Wilson eds., ).


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About the Contributors

Andrea Armstrong is a JD candidate at Yale Law School. Prior to returning toschool, she worked as a researcher at the Center on International Cooperationand the International Center for ransitional Justice. She has researched con-

flict-related issues such as refugee protection (IRC), Iraqs oil-for-food program(CSIS) and conflict prevention (UN-DPA), and has published articles on transi-tional justice/reparations and regional approaches to post-conflict reconstruction.

Bill Boothbyis a Group Captain in the Royal Air Force Legal Branch. He hasbeen in the Service since , with appointments in Germany, Hong Kong,Cyprus, Croatia and the UK. Until recently, he led a joint service legal officeat the Joint Doctrine and Concepts Centre at Shrivenham, conducting legalreviews of weapons procurements and dealing with general international law is-

sues. Group Captain Boothby was a member of the UK delegations to the Oslonegotiations which gave rise to the Ottawa Convention and to the ConventionalWeapons Convention negotiations in Geneva. He is on the Editorial Board ofthe UKManual of the Law of Armed Conflict.

Fania Domb is a Senior Lecturer in Public International Law, AdministrativeLaw and the Law of Human Rights at the Law School of the Netanya AcademicCollege (Israel). She is also Associate Editor of the Israel Yearbook on HumanRights, whose Editor is Professor Yoram Dinstein.

Tomas Franck is Professor Emeritus of International Law at the New YorkUniversity School of Law. He has served as Editor-in-Chief of the American

Journal of International Law and President of the American Society ofInternational Law, and has served both as Judge Ad Hoc and as Counsel in casesbefore the International Court of Justice and as Arbitrator under Annex VIIof the Law of the Sea reaty. A member of the Institut de Droit International,his most recent book is Recourse to Force: State Action against Treats and Armed

Attacks(). Professor Franck was a member of the doctoral committee thatsupervised Yoram Dinsteins dissertation almost half a century ago.

Charles H.B. Garrawayis Visiting Professor of Law at Kings College, Universityof London, an Associate Fellow of Chatham House and a Visiting Fellow at the


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xxxivAbout the Contributors

Human Rights Centre, University of Essex. He was the Stockton Professor atthe US Naval War College in /, following years service in the British

Army as a legal officer. He saw service in Operation Desert Storm and alsoworked for the Coalition Provisional Authority in Baghdad in .

erry D. Gillis Associate Professor of International Law at Utrecht Universityand Professor of Military Law at the University of Amsterdam and theNetherlands Defence Academy. He is a member of the editorial board of the

Netherlands International Law Review, the Journal of Conflict and Security Lawand the Militair Rechtelijk ijdschrift (Netherlands Military Law Review). Heteaches courses in the use of force, humanitarian law and military operationallaw at the abovementioned institutions and has been a visiting research fellow at,

inter alia, Columbia University, Te Lauterpacht Centre at Cambridge Universityand the International Institute of Humanitarian Law at San Remo.

Wolff Heintschel von Heinegg is Professor of Public Law, especially PublicInternational Law, European Law and Foreign Constitutional Law at the Europa-Universitt Viadrina in Frankfurt (Oder). Since October he has served asDean of the Law Faculty of the Europa-Universitt. Previously, he served asProfessor of Public International Law at the University of Augsburg. In the aca-demic year / he was the Charles H. Stockton Professor of International

Law at the US Naval War College in Newport, RI, USA. He has been a VisitingProfessor at the Universities of Kaliningrad (Russia), Almaty (Kazakhstan),Santiago de Cuba (Cuba) and Nice (France). He was the Rapporteur of theInternational Law Association Committee on Maritime Neutrality and was theVice-President of the German Society of Military Law and the Law of War.Professor Heintschel von Heinegg was among a group of international lawyersand naval experts who produced the San Remo Manual on International Law

Applicable to Armed Conflicts at Seaand in he published the German NavysCommanders Handbook on the Law of Naval Operations.

Dino Kritsiotis is Reader in Public International Law at the University ofNottingham and Visiting Professor of Law at the University of Michigan. Histeaching and research interests focus on the international legal regulation of forceand international humanitarian law, and he serves as a member of the edito-rial boards of the Journal ofConflict and Security Law, Human Rights & HumanWelfare, the Human Rights LawReview and theAfrican Yearbook of InternationalHumanitarian Law.

Avril McDonaldis Head of the Section of International Humanitarian Law and

International Criminal Law at the MC Asser Institute for International Lawin Te Hague. She teaches international humanitarian law at the University ofGroningen and international peace and security at the University of Amsterdams


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xxxvAbout the Contributors

School of International Relations and is a regular guest lecturer at a number ofother academic institutions in the Netherlands. Previously, she worked as a legal

assistant at the International Criminal ribunal for the Former Yugoslavia, andprior to that, as a journalist and editor in Dublin, Sydney and New York.

Teodor Meron is a Judge on the Appeals Chambers of the InternationalCriminal ribunal for the Former Yugoslavia (ICY) and the InternationalCriminal ribunal for Rwanda. He served as President of the ICY from through . A leading scholar of international humanitarian law, humanrights, and international criminal law, Judge Meron is the Charles L. DenisonProfessorEmeritusand Judicial Fellow at New York University Law School. Hehas also served as Professor of International Law at the Graduate Institute of

International Studies in Geneva and a Visiting Professor of Law at Harvardand at the University of California (Berkeley). Judge Merons books and articleshave helped build the legal foundations for international criminal tribunals. AShakespeare enthusiast, he has also written extensively on the laws of war andchivalry in Shakespeares historical plays. Judge Meron was the recipient ofthe American Society of International Laws Manley O. Hudson Medal.

John F. Murphy is a Professor of Law at Villanova University School of Lawin Villanova, Pennsylvania, USA. Previously, he was an Attorney/Adviser in

the Office of the Legal Adviser, US Department of State, and practiced law inNew York and Washington, DC. From - he was a professor of law atthe University of Kansas School of Law, and a visiting professor at the Cornelland Georgetown Law Schools. From - he was the Charles H. StocktonProfessor of International Law at the US Naval War College. He is the recipientof a Certificate of Merit from the American Society of International Law for hiscasebook (with Alan Swan), Te Regulation of International Business and EconomicRelations, and serves as the American Bar Associations Representative to the USMission to the United Nations.

Jelena Pejic is a Legal Adviser at the Legal Division of the InternationalCommittee of the Red Cross (ICRC) in Geneva responsible, among other things,for issues related to terrorism and international humanitarian law. She also is Headof the ICRCs Project on the Reaffirmation and Development of InternationalHumanitarian Law. Prior to the ICRC, she was Senior Program Coordinator atthe Lawyers Committee for Human Rights in New York (now Human RightsFirst) and was a lecturer in Public International Law and International Relationsat Belgrade University Law School.

W. Michael Reismanis Myres S. McDougal Professor of International Law at theYale Law School where he has been on the Faculty since . He has been a visit-ing professor in okyo, Hong Kong, Berlin, Basel, Paris and Geneva. He is a Fellow


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of the World Academy of Art and Science and a former member of its ExecutiveCouncil. He is a member of the Eritrea-Ethiopia Boundary Commission, a

member of the Advisory Committee on International Law of the Department ofState, Vice-Chairman of the Policy Sciences Center, Inc., a member of the Boardof Te Foreign Policy Association, and has been elected to the Institut de DroitInternational. He was the President of the Arbitration ribunal of the Bank forInternational Settlements and was President of the Inter-American Commissionon Human Rights of the Organization of American States, Vice-President andHonorary Vice-President of the American Society of International Law andEditor-in-Chief of theAmerican Journal of International Law.

Adam Robertsis the Montague Burton Professor of International Relations at

Oxford University, and a Fellow of Balliol College. His main academic inter-ests are in the fields of international security, international organizations, andinternational law (including the laws of war). He has also worked extensivelyon the role of civil resistance against dictatorial regimes and foreign rule, on thehistory of thought about international relations, and on the role of terrorism ininternational politics. He is a Member of the Council, International Institutefor Strategic Studies, London; and a Member of the UK Defence AcademyAdvisory Board.

Marco Sassli is Professor of International Law at the University of Geneva,Switzerland, and chairs the boards of the University Centre for InternationalHumanitarian Law in Geneva and of Geneva Call, a non-governmental organi-zation engaging armed non-state actors to encourage adherence to humanitariannorms. From until , Professor Sassli was Professor of International Lawat the University of Quebec in Montreal, Canada, where he remains AssociateProfessor. He worked from to for the International Committee of theRed Cross at the headquarters and in conflict areas. He was, inter alia,deputy headof its legal division and worked in the Middle East and the Balkans. ProfessorSassli has served as Executive Secretary of the International Commission of

Jurists and as Registrar at the Swiss Supreme Court.

Ivan Sheareris Emeritus Professor of Law, University of Sydney, Australia. From to he held the Challis Chair of International Law at that University.In - he held the Stockton Chair of International Law at the UnitedStates Naval War College, Newport, Rhode Island. Since he has served asa member of the United Nations Human Rights Committee. He is an electedMember of the International Institute of Humanitarian Law, San Remo. He is aCaptain on the retired list of the Royal Australian Navy Reserve.

Michael N. Schmittis the Charles H. Stockton Professor of International Lawat the United States Naval War College in Newport, Rhode Island. He previ-

About the Contributorsxxxvi


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ously has been on the faculties of the George C. Marshall European Center forSecurity Studies in Garmisch-Partenkirchen, Germany, and the United States

Air Force Academy. A retired United States Air Force judge advocate, ProfessorSchmitt saw service during Operations Provide Comfort and Northern Watch.He is an elected member of the International Institute of Humanitarian Law inSan Remo, Italy, and serves on numerous editorial and advisory boards, includingthe International Humanitarian Law Series Editorial Advisory Board.

Andru E. Wall is an international law attorney in the United States Navy.Lieutenant Commander Wall served in Iraq in and . He has taughtinternational law and US national security law at the United States Naval WarCollege and Roger Williams University School of Law. Commander Wall is an

elected member of the San Remo International Institute of Humanitarian Lawwhere he also serves on the teaching staff.

Kenneth Watkin is the Judge Advocate General for the Canadian forces andis responsible for the provision of military law advice to the Government ofCanada and for the superintendence of the military justice system. Brigadier-General Watkin has been a military legal officer for years including service asthe Deputy Judge Advocate General/Operations where he provided legal advicein respect of international and domestic deployments of the Canadian Forces.

He was a Visiting Fellow at the Harvard Law Schools Human Rights Programduring -.

Ruth Wedgwood is the Edward Burling Professor of International Law andDiplomacy, and Director of the International Law and Organizations Program,School of Advanced International Studies, Johns Hopkins University, inWashington, DC. She serves on the US Secretary of States Advisory Committeeon International Law, the Pentagons Defense Policy Board, and the CIAHistorical Review Panel. She was elected by the states parties as US memberof the United Nations Human Rights Committee in Geneva. She is an editor

of the American Journal of International Law, vice-president of the AmericanSociety of International Law, and former co-director of studies at the HagueAcademy of International Law. Earlier in her career, she was a federal prosecutorand Stockton Professor of International Law at the US Naval War College.

Rdiger Wolfrumis Director at the Max Planck Institute for Comparative PublicLaw and International Law and Professor at the Law Faculty of the University ofHeidelberg. Since he is Judge and since President of the Internationalribunal for the Law of the Sea. He teaches international law as well as national

public law. He has written and edited books on international law, internationalenvironmental law and on human rights and serves as advisor to several interna-tional law journals.

About the Contributorsxxxvii


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Chapter 1

A Revival of the Just War Teory?

Ivan Shearer

I Introduction

A new interest in just war theory has been prompted by pressures to justify, in

legal terms, forms of armed attack or forcible intervention lying outside, or at themargins of, the uses of armed force in international relations allowed by orthodoxinterpretations of the United Nations Charter and customary international law.Although we are concerned here principally with thejus ad bellum, there is a con-nection with the jus in bello in that one commonly accepted proposition of just

war theory is that a use of force is not justified where the necessary means to beemployed to achieve the object would be inherently excessive or indiscriminate.

It is the position of the present writer that the orthodox interpretation ofinternational law governing the use of armed force in international relations,

which admits of no exceptions to the authorisations specified in chapter VII ofthe Charter, is by reason of that inflexibility no longer able to serve the interestsof world order. As a result, certain states no longer seek to justify their uses offorce in terms of international law. Tose states look only to a political justifica-tion, or assert a doctrine of the supremacy of national law that is not subject tointernational law. Tis is a dangerous trend, subversive of the most basic principleof world order governed by law. It is argued here that, rather than to rail againstsuch attitudes impotently, or worse still to accept them, it is better to seek prin-cipled guidance from just war theory and to accommodate that theory withinan interpretation of the Charter that takes account of current realities and chal-

lenges. In that way, the ideal of a world order can be re-imagined for the stcen-tury and not stuck in the mould of . It must be stressed that this approach

For orthodox interpretations of the UN Charter provisions on the use of force seeI. Brownlie,International Law and the Use of Force (Clarendon Press, Oxford, );S. Chesterman, Just War or Just Peace? Humanitarian Intervention and InternationalLaw (Oxford University Press, Oxford, ).

Te Responsibility to Protect: Research, Bibliography, Background. Report of theInternational Commission on Intervention and State Sovereignty, SupplementaryVolume (International Development Research Centre, Ottawa, ) -.

M.N. Schmitt and J. Pejic (eds.), International Law and Armed Conflict: Exploring the Faultlines Koninklijke Brill BV. Printed in Te Netherlands.ISBN . pp. -.


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2 Ivan Shearer

is intended not to bring inside the tent those who wish defiantly to live out-side it, but is directed towards a more flexible reading of the Charter to allow

for a principled and humanitarian use of force in certain grave situations whichdemand a forcible response. It is further argued that this may be achieved with-out amendment to the Charter; that, like other constitutional documents, theCharter is capable of development and response to changing needs and circum-stances within legitimate margins of interpretation of the existing text.

Te writer was first prompted to these thoughts by the writings of JuliusStone.Tey were reinforced by the publication, in December , of the Reportof the International Commission on Intervention and State Sovereignty.TatReport did not indeed propose the interpretation of the UN Charter and inter-national law advanced by Stone, some other writers, and here; rather it urged the

Security Council, in very strong terms, to live up to its responsibility to protectthe victims of grave and systematic violence and injustice, such as genocide andethnic cleansing, putting aside irrelevant political considerations, and exercis-ing its powers under chapter VII of the Charter. However, there are implicationsin the Report that point in the direction of imagining a justification for the useof force beyond the limits accepted by orthodox interpretation. Failure of theSecurity Council, whether its membership is re-designed in the future or not, toheed its responsibility would, according to the Commission send the followingmessages:

Te first message is that, if the Security Council fails to discharge its respon-sibility in conscience-shocking situations crying out for action, then it is unre-alistic to expect that concerned states will rule out other means and forms ofaction to meet the gravity and urgency of these situations. If collective organi-zations will not authorize collective intervention against regimes that flout themost elementary norms of legitimate governmental behaviour, then the pres-sures for intervention by ad hoc coalitions or individual states will surely inten-sify. And there is a risk then that such interventions, without the discipline andconstraints of UN authorization, will not be conducted for the right reasons or

with the right commitment to the necessary precautionary principles.Te second message is that if, following the failure of the Security Council toact, a military intervention is undertaken by an ad hoc coalition or individual

For a discussion of the UN Charter as a constitutional text see W. Friedmann, TeChanging Structure of International Law (Stevens, London, ) -.

J. Stone, Legal Controls of International Conflict (Maitland, Sydney, ); Aggressionand World Order (Maitland, Sydney, ), ;Of Law and Nations (Hein, BuffaloNY, )-.

Te Responsibility to Protect. Report of the International Commission on Intervention

and State Sovereignty. (International Development Research Centre, Ottawa, ).Te Report is also accessible on the website of the International Crisis Group: www.icg.org.


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31 A Revival of the Just War Teory?

state which does fully observe and respect all the criteria we have identified,and if that intervention is carried through successfully and it is seen by worldpublic opinion to have been carried through successfully then this may haveenduringly serious consequences for the stature and the credibility of the UNitself.

Te references in these paragraphs to precautionary principles and criteriaare to the sections of the Report that discuss at length six criteria for militaryintervention: right authority, just cause, right intention, last resort, proportionalmeans, and reasonable prospects of success.Tese six criteria are but a modernrestatement of just war theory (or of a version of that theory), even though theCommission refrains from so identifying their origin.

As this essay was being written there was a reminder too of the connectionbetween just war theory and conscientious objection to service in a particular war.It is reported that an officer of the (British) Royal Air Force will face a court-martial over his refusal to return to duty in Iraq. He will argue that the attackon Iraq in March has been shown to have been illegal after the event andthat he is justified by legal opinions to that effect to disobey what, to him, havebecome unlawful commands. It is said to be the first such recorded case.

II Te Origins of the Just War Teory

Yoram Dinstein has himself given a typically clear and concise account of the justwar doctrine in the past.In the western legal tradition, the doctrine began withthe institution of the collegium fetiale, a college of priests who from early timesuntil the advent of Imperial Rome administered the jus fetiale, the function ofwhich was to judge whether there were sufficient grounds for Rome to go to warwith an adversary.Waging war without the approval of the college was unlaw-ful; but as Dinstein wryly comments, thefetialeswere likely to do the bidding oftheir political masters.

Te early Christians were pacifists, but after the Roman Emperor

Constantine made Christianity the official religion of the Roman Empire in ,

Report, paras. ., .. Report, paras. .-.. RAF officer faces jail over illegal war , Te Sunday imes (London), October ,

, page . Y. Dinstein, War, Aggression and Self-Defence(th ed., Cambridge University Press,

Cambridge, ) -. As an aside it may be noted that fetial law, as a synonym for the law of war, sur-

vived into the beginnings of the modern period of international law, as in the title of

the treatise by R. Zouche, Juris et Judicii Fecialis, sive Juris inter Gentes (); Classicsof International Law edition, . Dinstein, .


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the Church had to reconsider its position. Tat position was articulated by SaintAugustine, Bishop of Hippo (-), in his book Te City of God (ca. ). As

explained by Oliver ODonovan,

St. Augustine founded his theory of just war(bellum justum)on the basis of the Christian command to love.In that he wasfollowed by St. Tomas Aquinas (-) and Francisco Suarez (-),both of whom located their discussion of the subject in sections of their writ-ings devoted to charity. As ODonovan comments, In the context of war we findin its sharpest and most paradoxical form the thought that love can sometimessmite, and even slay.Tus war is a loving judgment on evil doers. ODonovangoes on to tantalise the reader with his interpretation of Augustine that survivalas such was not a legitimate cause for war:

o take survival as the bottom line is to revert to the antagonistic model ofmortal combat, and so inevitably to retreat from the Gospel proclamation ofthe universal rule of Christ and from the praxis of loving judgment. Whenself-defence, of state, community, or individual has the last word, pagan-ism is restored. Precisely for this reason a Christian witness to Gods peacemust always be acted out against the horizon of suffering and martyrdom .

Judgment cannot possibly issue a licence to avoid defeat by all means.

Nevertheless, the nuanced doctrine of Augustine was unlikely to be observed

diligently. As though to illustrate the political subservience of just war theoryto political exigencies, earlier noted by Dinstein of the fetiales,the four crusadesfrom to were justified as wars to restore the right of pilgrimage to the

O. ODonovan, Te Just War Revisited (Cambridge University Press, Cambridge,) . ODonovan is Regius Professor of Moral and Pastoral Teology, and Canonof Christ Church, Oxford.

Augustines letter to Boniface treats the obligation of military action as an obli-gation of love towards ones neighbour. ODonovan, . Te motive of love is alsostressed by the American theologian Paul Ramsey in his works War and the ChristianConscience (Duke University Press, Durham, ) and Te Just War: Force and PoliticalResponsibility (Scribners, New York, ).On Augustine and his just war theorysee also C. McKeough, Innocent Civilians: the Morality of Killing in War (Palgrave,Basingstoke, ) -.

Ibid. For another Christian reflection on the tension between pacifism and just warsee . Frame, Living by the Sword: Te Ethics of Armed Intervention (University ofNew South Wales Press, Sydney, ), -. Dr Frame is Anglican Bishop to theAustralian Armed Forces.

ODonovan, -. What would Augustine have said about the (bare) majority advi-sory opinion of the International Court of Justice in the Legality of the Treat or Useof Nuclear Weapons() ICJ Rep. at para. (a)E. where the Court said that it

cannot conclude definitively whether the threat or use of nuclear weapons wouldbe lawful or unlawful in an extreme circumstance of self-defence, in which the verysurvival of a state would be at stake?


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Holy Lands, and protection of the holy places, although in reality for politicaland economic motives. Te Fourth Crusade (-), however, went badly

wrong after initially having been blessed as just by Pope Innocent III. Te cru-saders, instead of adhering to their mission, first attacked without any cause oroffence whatsoever the city of Zara in order to amass loot to pay the Venetiansfor the ships provided for the voyage. Ten they diverted from the authorisedroute to Jerusalem via Egypt to attack Constantinople in order to take sides ina succession dispute and, not irrelevantly, for plunder. Te Pope placed the cru-saders under sentence of excommunication, but, for the sake of morale, newsof it was kept from the troops. Te bloody success of the crusaders in subduingthe Byzantine Empire and establishing a Latin Kingdom in the east under theVenetians and the French, thus temporarily undoing the Great Schism between

Greek and Roman Christianity of , eventually restored the crusaders to papalgrace.

St. Tomas Aquinas was the first to set out in detail the requirements of ajust war. He proposed three conditions (echoes of which will be apparent in theReport of the International Commission on Intervention and State Sovereignty:Te Responsibility to Protect, to be discussed below). As summarised byDinstein, for war to be just, in the opinion of Aquinas, the following three condi-tions had to be fulfilled: (i) the war had to be conducted not privately but underthe authority of a prince; (ii) there had to be a just cause for the war; and (iii) it

was not enough to have a just cause from an objective viewpoint , but it was nec-essary to have the right intention to promote good and to avoid evil. (Elsewhere,Aquinas stated that to promote good and avoid evil is the first principle of thenatural law.)

As Dinstein notes, the approach of Aquinas was followed and expandedby other canonists, and later writers, into catalogues of what would qualify as ajust war. Tis constitutes in a sense a perversion of the doctrine, since almostanything could and did form grounds for offence and thus for a just responsein war. For example, although at first defending the rights of the indigenousinhabitants of South America, the Spanish Dominican theologian and lawyer

Victoria came to justify the use of force by Spain in subduing them by reason oftheir resistance to the freedom of travel, trade, and the spread of Christianity.(Shades here, perhaps, of the crusades.) ODonovan makes a similar point inclaiming that just war theory was never intended to be a legal code, but rathera proposal.Although just war theory came to be part of general internationallaw, with the secularisation of that law from the time of the Peace of Westphalia

J. Phillips, Te Fourth Crusade and the Sack of Constantinople (Viking, New York,).

A.P. dEntrves,Natural Law (Hutchinson, London, ) -. F. de Victoria, De Indis et jure belli relectiones () ; Dinstein, . ODonovan, .


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6 Ivan Shearer

(), embraced by Protestant as well as Catholic scholars, including notablyGrotius,the theory gradually became discredited and was abandoned. o the

dismissive judgment of .J. Lawrence in the th century, cited by Dinstein,

onecould add that of Heffter, that discussions of the conditions under which a warwould be just were oiseuses.

III Decline of the Just War Teory

Although it has been observed that the end of one century and the prospect ofthe next often leads to sudden bursts of energy on the part of politicians andstatesmen in re-imagining the future, the Hague Peace Conferences of and did not attempt to define the circumstances in which recourse to armed

force would be just, but rather sought, in the case of the First Conference, toestablish alternatives to war as a means of settlement of disputes, and in the caseof the second, to lay down detailed rules regarding the conduct of war (HagueConventions I-XIII, ). Tus, attention was directed towards the jus in belloand away from thejus ad bellum. Te sole immediate consequence for the rightto wage war of the First World War - was the provision of article ofthe reaty of Versailles for the prosecution of Kaiser Wilhelm II. But that pro-vision did not charge the Kaiser with authorising an unjust war, or the crime ofaggression in the modern sense, but with a supreme offence against international

morality and the sanctity of treaties.

Te avoidance of the language of interna-tional law in this provision may be taken as a reflection of the general scepticismof the time regarding the legal nature of international law.

Most self-serving of all declarations of the just causes of war at this time wasthat of Lenin. In expressing Soviet legal theory, he stated that war was justified if

De Jure Belli ac Pacis, Book , Chapter , Section , headed What causes of war maybe called justifiable. Grotius avoided a detailed list, however. In Section , justifi-able causes were said to include defence, the obtaining of that which belongs to us

or is our due, and the inflicting of punishment. Classics of International Law edi-tion, Oxford, , of the edition of . McKeough, above n., at , holds thatthe most important and lasting step taken by Grotius was to sever finally the linkbetween ad bellum andin bellojustice . It was left to Grotius to make the deci-sive break and to reject outright the notion of collective guilt that was central to theestablished Augustinian justification of war . o Grotius war was a method of set-tling disputes when all other methods fail.

Dinstein, . A. Heffter, Le droit international public de lEurope (rd ed., ), , cited by W.E.

Hall,A reatise on International Law(th ed, Oxford, ) , n. Having been granted sanctuary by the Netherlands, which was not a party to the

Versailles reaty, the Kaiser was never brought to trial. He died in exile , ironi-cally in a country then under German occupation after an even more egregious actof aggression.


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it serves the interests of the proletariat and secures for it liberation from the(capitalist) yoke and freedom for struggle and development.

Te foundation of the League of Nations in marked the beginnings ofthe modern era of collective security through international institutions, thus intheory not only supplanting the right of unilateral action to wage war, but alsoproviding a means whereby an injury committed by one state against anothercould be judged and remedied by peaceful means. It could be said to be implicitin the provisions of the UN Charter that criteria similar to those used in the justwar era would be likely to be used in judging circumstances deserving of collec-tive action. Te Iraqi invasion of Kuwait in is an obvious example, where theuse of force was authorised. Te practice of apartheid in South Africa is an exam-ple of an affront to common humanity, where measures short of force (sanctions)

were authorised. Te essential point is that there is now, and has been since ,an international institution of practically universal membership capable of sittingin judgment on threats to, and breaches of, international peace and security.

For some, that is the end of the matter. If the United Nations and espe-cially the Security Council fails to condemn, or take effective action against,grave offences against international peace and security, then that has to beaccepted as preventing any state, or coalition of states, from taking the law intotheir own hands. By reason of the peculiar circumstances of , each of the vic-torious powers of World War II was granted the right of veto over any enforce-

ment action proposed by the Council. Te exercise of the veto might be basedon unmeritorious grounds, or in complete disregard of the justice of the matterat hand. Tus, while in theory there is an institution constituting the modernequivalent of thefetiales, it is a far from perfect instrument of justice. Nor is it aperfect judgmental body; an act in violation of the Charter might be the subjectof a condemnatory resolution proposed to the Security Council, but be vetoedby a permanent member because its own conduct, or that of an allied state, is inquestion. Herein lies the dilemma.

IV Te Use of Force under the UN CharterTe orthodox view among international lawyers is that it is lawful for a state toresort to the use of force in international relations only in two circumstances:(a) in self-defence against armed attack, as re-affirmed in article of the UNCharter; and (b) when authorised by the UN Security Council as an enforcementmeasure under Chapter VII of the Charter.

Te orthodox view has been justified and repeated on many occasions. Arecent and compelling reading of the text of the Charter, especially article (),in the light of the original intentions of the drafters at San Francisco, is given by

Cited by A. Nussbaum, A Concise History of the Law of Nations (Macmillan, NewYork, ) .


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8 Ivan Shearer

Tomas M. Franck.Professor Franck points out that the original text of article() read simply:

All members of the Organization shall refrain in their international relationsfrom the threat or use of force in any manner inconsistent with the purposesof the Organization.

However, following an amendment proposed by Australia, and unanimouslyadopted, the words against the territorial integrity or political independence ofany member state were inserted after the word force.Franck comments thatthe drafters thereby unintentionally created an opening for some, later, to arguethat the prohibition against force did not extend to minor or temporary inva-

sions that stopped short of actually threatening the territorial integrity of thevictim state or its independence. Such a reading of article () is utterly incongru-ent, however, with the evident intent of the sponsors of the amendment.

Perhaps Franck had in mind such actions as the rescue mission mounted byIsrael at Entebbe Airport in . Although in the Security Council the US rep-resentative did make reference to a temporary breach of the territorial integrityof Uganda, the main justification given by both Israel and the United States wasthe exercise of the right of self-defence, which was argued to include the rightto protect nationals situated abroad from attack.With respect, Francks com-

ment rather trivialises the issue. It is not a question of de minimisviolations ofterritorial integrity or political independence, but rather whether there is room inthe text to allow for a use of force motivated by objectively non-aggressive rea-sons, such as to save lives, that transcends considerations of territorial integrity orpolitical independence. Franck himself recognizes that there is a certain tensionin the Charter between the desiderata of perpetual peace and perfect justice. More fundamentally, he like many others seems to conceive of the Charters reg-ulation of the use of force in inflexible terms, not open to interpretation in thelight of changing circumstances and needs. In the analogous context of constitu-tional law, he would be accounted an originalist, not a constructionist.

.M. Franck, Recourse to Force: State Action against Treats and Armed Attacks, TeHersch Lauterpacht Memorial Lectures (Cambridge, ) -.

Although not noted by Franck, these words were taken from Article of theCovenant of the League of Nations.

Franck, . Te Security Council debates are collected in International Legal Materials

(). See comment by M. Akehurst, International Relations (). For Dinsteinsapproval of the Entebbe mission, and his conditional not open-ended acceptance

of the rescue of nationals abroad as a species of self-defence, see War, Aggression andSelf-Defence, -. Franck, -.


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ity or injustice, where peaceful methods had failed, it would not be prohibitedby the Charter. Tis more elastic reading of article () is favoured by a number

of scholars, albeit a minority, as allowing for uses of force otherwise than in self-defence, including forcible intervention in order to prevent grave and widespreadabuses of human rights, such as genocide.Te scholars who support this posi-tion include Julius Stone,Derek Bowett,and Anthony DAmato.A justifi-cation for the intervention by NAO in Kosovo in , based on article (),was also advanced by Belgium in the case brought by Yugoslavia against NAOmembers before the International Court of Justice.

V Te Attack on Iraq,

aking the orthodox view, the attack by the US and its allies against Afghanistanin was lawful, and the attack against Iraq in was unlawful. Te attackon Afghanistan was a lawful measure of self-defence because, following theevents of September , which were quickly attributed to Al-Qaeda and notdenied by that organisation, the aliban government of Afghanistan was calledon to hand the groups leaders over to the US. Te aliban refused. Tey not onlyrefused, but made statements supportive of Osama bin Laden, the leader of Al-Qaeda, thereby endorsing his actions. Tus the attack by the US and allied forceswas made after due warning and an opportunity for the aliban to avoid the use

of force against it.It is not necessary for the Security Council to authorise actions in self-defence. Tis is acknowledged by the Charter to be an inherent right of states;and one, moreover, that may have to be exercised immediately and with no timeto refer the situation to the Security Council. But actions in self-defence must bereported to the Security Council, which may then authorise subsequent meas-ures, including, if applicable, a finding that the purported action in self-defence

Tese views are critically discussed by Chesterman, above n., at -.

J. Stone,Aggression and World Order(Stevens, London, ) . D. Bowett, Self-Defence in International Law (Manchester University Press,Manchester, ) .

A. DAmato,International Law: Process and Prospects (ransnational, Dobbs FerryNY, ) -.

Donc ce nest pas une intervention dirigee contre lintegrit territoriale, lindpen-dance pour lex-Rpublique de Yougoslavie, cest une intervention pour sauver unepopulation en pril, en dtresse profonde. Cest la raison pour laquelle le Royaumede Belgique estime que cest une intervention humanitaire arme qui est compatibleavec larticle , paragraphe , de la Charte qui ne vise que les interventions dirigescontre lintegrit territoriale et lindpendance politique de lEtat en cause. CaseConcerning the Legality of the Use of Force (Yugoslavia v. Belgium), Verbatim record, May , oral pleading of Mr. Rusen Ergec, counsel for Belgium, accessed athttp://www.icj-cij.org/icjwww/idocket/iybe/iybeframe.htm.


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was not justified in the circumstances. In the case of Afghanistan, the SecurityCouncil, through its subsequent resolutions, has in effect validated the US and

allied actions.It is otherwise in relation to Iraq. Te build-up to the invasion of March was marked by extreme recalcitrance on the part of Saddam Hussein inhis refusal to cooperate with the weapons inspections mandated by the SecurityCouncil. It is sometimes forgotten in the told-you-so condemnations of theinvasion following the failure to find the suspected weapons of mass destruc-tion (WMDs), that Iraq, for a long period between and early , behavedas though it had something to hide. It was playing a very dangerous game. Tatalone might not have been sufficient to warrant a conclusion that an armed attackby Iraq on the US and its allies was about to occur, warranting immediate action

in self-defence, although it was indeed offered by President Bush in broad jus-tification.

What is disappointing to an international lawyer is that the United States,unlike its allies the United Kingdom and Australia, did not find it necessary todeclare the legal grounds for its actions in terms of the UN Charter. It offeredonly the political justification that the regime of Saddam Hussein and his posses-sion of WMDs constituted a threat to itself and to the rest of the world.

Te United States Administrations attitude towards international law in thisinstance was expressed by John Bolton, then Under-Secretary for Arms Control

and International Security at the State Department, and now US Ambassadorto the UN. In a speech to the National Lawyers Convention, sponsored by theFederalist Society, on November , he effectively dismissed internationallaw as a necessary element in the justification of foreign policy. He sees the basisof state power as lying in the consent of the people governed, expressed throughnational not international law:

Indeed, theres a fundamental problem of democratic theory for those whocontend, implicitly or otherwise, that the proper operation of Americas insti-tutions of representative government are not able to confer legitimacy for the

use of force. Make no mistake: not asserting that our constitutional proce-dures themselves confer legitimacy will result over time in the atrophying ofour ability to act independently.Tis has been fundamentally misunderstoodin the UN system. Many in the UN Secretariat and many UN member gov-ernments in recent Security Council debates have argued directly to the con-trary. Increasingly, they place the authority of international law, which doesnot derive directly from the consent of the governed, above the authority ofnational law and constitutions.

It is difficult for international lawyers to engage with opinions of this kind. It hasto do with deep-seated reservations in US government circles, transcending party


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will be added that in exercising such a limited discretion to act, those using forcemust be guided by modern just war principles.

VI Pre-Emptive Self-Defence

Much has been made of the alleged promotion by the US government of a noveldoctrine of pre-emptive attack. It is necessary to examine exactly what hasbeen said in relevant documents. What the US has announced which might beregarded as new doctrine is that it may take pre-emptive action against terror-ists. It is not expressed as an extension of the right of self-defence against states.In Te National Security Strategy of the United States of America(), publishedby the White House after the / attacks, it is stated thus:

We will disrupt and destroy terrorist organizations by defending the US,the American people, and our interests at home and abroad by identifyingand destroying the threat before it reaches our borders. While the US willconstantly strive to enlist the support of the international community, we willnot hesitate to act alone, if necessary, to exercise our right of self-defense byacting pre-emptively against such terrorists, to prevent them from doing harmagainst our people and our country .Te US will not use force in all cases topre-empt emerging threats, nor should nations use pre-emption as a pretext for

aggression . We will always proceed deliberately, weighing the consequencesof our actions .

Tis statement was clarified in January by the Legal Adviser to the StateDepartment:

Te US, or any other nation, should not use force to pre-empt every emergingthreat or as a pretext for aggression. We are fully aware of the delicacy of thissituation we have gotten into. After the exhaustion of peaceful remedies, andafter careful consideration of the consequences, in face of overwhelming evi-

dence of an imminent threat, though, a nation may take pre-emptive action todefend its nationals from catastrophic harm.

C. Enemark and C. Michaelsen consider the invasion of Iraq against these princi-ples: Just war doctrine and the invasion of Iraq, Australian Journal of Politics andHistory- (). While willing to give the US and its coalition the benefit ofdoubt on right intention, and conceding the criteria of reasonable prospect of suc-cess and proportionate cause might just arguably be satisfied, they conclude that it

was clearly unjust against the criterion of last resort. Speech to the Foreign Policy Association, Pre-emptive Force: When Can it be

Used?, accessed at www.fpa.org.


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enforcement action would necessarily be carried out in full cooperation with thegovernments concerned.

Te prudential character of the doctrine of pre-emption, and its lack ofnovelty, are emphasized by a former Legal Adviser to the US State Department,Abraham D. Sofaer. In terms reminiscent of the just war theory, applied to thespecific question of the pre-emptive use of force, Sofaer proposes four criteria fordetermining the necessity of such a use of force: () the nature and magnitudeof the threat involved; () the likelihood that the threat will be realized unlesspre-emptive action is taken; () the availability and exhaustion of alternatives tousing force; and () whether using pre-emptive force is consistent with the termsand purposes of the UN Charter and other applicable international agreements.Although applying the first three of these criteria to an interpretation of article

of the UN Charter, Sofaer also refers to the margin of appreciation inherentin article () in his exposition of the fourth criterion. In the particular case ofIraq, the entire history of international efforts to disarm Iraq of weapons of massdestruction and cease its egregious violations of human rights must be taken intoaccount.

VII Humanitarian Intervention

A great disappointment at the UN Summit held in September was the fail-

ure to adopt a set of principles based on the notion of the responsibility to protect.Te origins of this idea came out of the need to protect the Kurds in the northof Iraq after the First Gulf War in , the experience of genocide in Rwanda,a failed state in Somalia, and ethnic cleansing in Kosovo. All of these, and manyother examples, are cases where international law has been struggling to re-imag-ine the Charter in face of the reality that most humanitarian disasters, and graveabuses of human rights, occur within the borders of sovereign states, tradition-ally protected by the doctrine of state sovereignty against intervention by otherstates. Tis doctrine is reflected in article () of the UN Charter. Although thatdoctrine became subject to the interpretation that what is inherently a matter

of domestic jurisdiction depends on the development of human rights law asthe actions by the UN against apartheid in South Africa showed there was noagreement on when forcible intervention to stop grave harm shouldbe regardedas lawful. Te US and its NAO allies intervened in Kosovo in to stopethnic cleansing by Serbia. No authorisation was given by the Security Councilbecause of a threatened veto by Russia (which would probably have been sup-ported by China also). What was the legal justification?

At the time the UK offered a legal justification in terms of pre-existing UNresolutions which, it stated, gave the necessary, if only implied, authority (rather

as in the later case of Iraq). Prime Minister ony Blair was more forthright. He On the necessity of pre-emption, EJIL, - ().


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stated that we intervened in Kosovo because it was right to do so. Tat is, mor-ally right. Te US offered no specific legal justification.

Humanitarian intervention was not a ground of justification for the inter-vention in Iraq, although it has been proffered on several occasions by PresidentBush as a secondary ground or desirable by-product. No-one defends the regimeof Saddam Hussein or fails to acknowledge the horrific abuses of human rightsinflicted by his regime on the people of Iraq. Whether the invasion could havebeen justified on that ground alone involves weighing up a number of factors,including the prudential considerations outlined above. Almost certainly theintervention would not have met those tests. But for the future it is enough to saythat humanitarian intervention as an exception to the prohibition of the use offorce under the Charter has inevitably demanded renewed consideration, follow-

ing events in Somalia, Rwanda, Kosovo, Sierra Leone, the Democratic Republicof the Congo, and East imor, among others.

Many legal commentators criticised the intervention in Kosovo, though interms less strident than later in relation to Iraq. In his studyJust War or Just Peace?Humanitarian Intervention and International Law,Simon Chesterman arguesthat forcible intervention, no matter how humanitarian the motives, is illegal inthe absence of authorisation by the Security Council. He is able to cite manyauthorities in support of his view. But what if the Security Council considersthe situation, as it did in relation to Kosovo, but one or more of the Permanent

Members casts, or threatens to cast, a veto? Or what if the Council acts too littleand too late, as it did in relation to Rwanda? Must the rest of the internationalcommunity stand by and do nothing? Chesterman admits the moral problem, andanswers it by saying that in exceptional circumstances such intervention would beillegal but excusable. Tis point of view has already been discussed above.

Tis gap was sought to be filled by the Report of the InternationalCommission on Intervention and State Sovereignty, co-chaired by formerAustralian foreign minister Gareth Evans and Ambassador Mohamed Sahnounof Algeria. Tat Report, sponsored and published by the Canadian Governmentin , makes a powerful case for humanitarian intervention, but as a responsi-

bility, not a right. Te Report stresses the need to base humanitarian enforcementactions on Chapter VII of the Charter, and calls upon the Security Council toexercise its powers and duties responsibly and on an objective view of the factsof each case. Nevertheless, the Report does envisage, even while deploring theprospect of, actions by states or coalitions of states intervening where the SecurityCouncil fails to act owing to a veto cast for unmeritorious reasons.

Oxford University Press, Oxford, . For a consideration of the subject measured against just war theory see C.A.J. Coady,

Te Ethics of Armed Huma

schmitt, ed., international law and armed conflict

Documents