Investigate responses to conflict, including jus ad bellum (when force may be used), jus in bello (how force is used), and the Geneva Conventions

What this dot point is asking

NESA wants you to know when force is lawful in international law and how the conduct of armed conflict is regulated. Expect this as a major Section IV extended response.

The answer

Jus ad bellum: when force is lawful

Article 2(4) of the Charter of the United Nations 1945 is the foundational rule:

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.

This is a peremptory norm (jus cogens). It admits two exceptions.

Exception 1: Self-defence (article 51 of the Charter). A state has the inherent right of individual or collective self-defence if an armed attack occurs. The use of force in self-defence must be reported to the Security Council and ceases when the SC has taken measures necessary to maintain international peace and security.

The customary law requirements of self-defence (from the Caroline correspondence of 1837, refined in Nicaragua v United States (1986) ICJ Rep 14) are:

• the threat must be imminent;
• the response must be necessary and proportionate.

Exception 2: Security Council authorisation under Chapter VII. Articles 39-42. The SC may determine that there is a threat to or breach of the peace and authorise enforcement action, including the use of force (article 42). Examples: the Korean War (SC Resolution 84 (1950)); the Gulf War (SC Resolution 678 (1990)); Libya (SC Resolution 1973 (2011)).

Some scholars argue for a third exception: humanitarian intervention. This is contested. The 1999 NATO intervention in Kosovo was widely characterised as illegal but legitimate; no Security Council authorisation was secured.

Jus in bello: how force may be used

International humanitarian law (IHL) regulates the conduct of armed conflict. The two streams:

Hague Law. Rules on the means and methods of warfare (e.g. the prohibition on certain weapons; rules on combatant status).

Geneva Law. Rules on the protection of persons hors de combat (out of the fight). The four Geneva Conventions 1949 are:

• Convention I: protection of wounded and sick in armies in the field;
• Convention II: protection of wounded, sick and shipwrecked at sea;
• Convention III: treatment of prisoners of war;
• Convention IV: protection of civilians in time of war.

The Conventions have 196 states parties (universal ratification).

The Additional Protocols 1977:

• Protocol I: international armed conflicts;
• Protocol II: non-international armed conflicts.

Australia is a party to both Additional Protocols.

Australia has implemented the Conventions through the Geneva Conventions Act 1957 (Cth). Grave breaches of the Conventions are offences in Australian law.

Four core principles of IHL

• Distinction. Combatants must distinguish between military objectives and civilians and civilian objects.
• Proportionality. The expected civilian harm must not be excessive in relation to the anticipated military advantage.
• Military necessity. Force must be necessary for a legitimate military purpose.
• Humanity. Even in war, persons must be treated humanely; superfluous suffering must be avoided.

Responsibility to Protect (R2P)

Endorsed by the UN World Summit Outcome Document, UN General Assembly Resolution 60/1 (2005), paragraphs 138-140. R2P has three pillars:

1. each state has a responsibility to protect its population from genocide, war crimes, ethnic cleansing and crimes against humanity;
2. the international community has a responsibility to assist;
3. when a state is manifestly failing, the international community has a responsibility to take collective action through the Security Council.

R2P was invoked in the 2011 Libya intervention (SC Resolution 1973 (2011)). Subsequent debate has focused on whether NATO exceeded the mandate, complicating later invocations of R2P.

Contemporary breaches and responses

Russia v Ukraine (from 24 February 2022). A clear breach of article 2(4). UN General Assembly Resolution ES-11/1 (2 March 2022) condemned the invasion. The International Court of Justice issued a provisional measures order on 16 March 2022 ordering Russia to suspend military operations. The International Criminal Court issued an arrest warrant for Vladimir Putin in March 2023 in relation to the alleged unlawful deportation of children from Ukraine.

Israel and Gaza (from October 2023). The International Court of Justice in South Africa v Israel (Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip) issued a provisional measures order on 26 January 2024 finding it plausible that Israel's actions could constitute a breach of the Genocide Convention and ordering Israel to prevent acts of genocide and to enable humanitarian assistance.

Effectiveness

Strengths. The Charter framework has held since 1945; major-power war among the P5 has been avoided; the Geneva Conventions have universal ratification; the ICC and ICJ are now active.

Weaknesses. The Security Council veto paralyses response to conflicts involving the P5. There is no international police force. Compliance ultimately depends on state willingness.