Legalities of Military Force - Essay Example

?Introduction The ability to respond to an attack from a non – actor is one which holds specific regulations. The question which arises is based on when a state can lawfully resort to military force from a non – state actor. The regulations are based on the United Nations Charter with Article 51, specifically which indicates when one can begin to attack another non – state actor, specifically with speculations based on self defense and collective self defense. However, other implications are associated with this, including regulations of responding in self defense as well as how the actions should or should not be carried out with. The response is one which is based on the right to defend the self and the nation and which becomes a victim to an armed attack. Understanding the details of the circumstances as well as how one can respond to specific attacks is essential not only with the mechanics of how to respond but also with how this associates with the different effects which occur when one responds. This research study will investigate the basic regulations, exceptions and the different laws which create alternative mechanics toward responding from an attack of a non – state actor. Legalities of Military Force Article 51 of the United Nations charter is the basic concept that identifies when one can respond to another with self – defense. In this article, it states that if the inherent rights of the individual are attacked then there is the right to react with self defense toward the non – state actor. However, there are also implications of international peace and security with the expectation that one will pass the attack through the UN before beginning action. The need to restore and keep international peace and security then become important with the self – defense and the way in which this creates a specific alternative to the international needs. While there is the ability to act with group or self – defense, the concept of international peace and security remain as important when deciding to use military force against an individual1. The first implication which allows one to respond with self defense is if the approach is an armed attack, which makes one a victim to the attack. An armed attack is inclusive of a military attack or operation that uses force in another state. This also includes bombardment with the use of weapons, blockades of another state, an attack with armed forces, acts of aggression and mercenaries that are sent to perform military actions. Each of these instances causes one to become a victim of the actions and constitute the right to react with military force against the other state for self defense. It is noted that there are instances which do not consist of military or armed attacks, including diplomatic missions, cyber attacks, supplies of financial or intelligence resources or frontier incidences. These do not cause one to be a victim of the attack and do not justify countermeasures as they are not proportionate with the violations that occur. There are also implications that the attack must be toward territory or warships and not toward nationals or diplomats as these are not a threat to the self defense of a country2. The use of self defense and the legalities which are associated with this continue with the requirements that are met for a reaction. The first of these is the necessity, meaning that there is no alternative means of redress, such as a treaty or other form of diplomacy. The second is based on the proportionality. If there is another means of changing the process from self defense, then the attack must not be repealed and proportions need to be altered. The need to have immediacy is also a part of the regulations with the understanding that this needs to be flexible until there is permission to move forward. It should also be noted that the actions cannot take place unless an action has already caused the state to become a victim. One cannot act preemptively before the threat or the attack occurs as there is not an understanding of the proportions that have occurred. There are specific circumstances and cases which may alter this situation; however, the main objectives must be met first by the SC and the UN Charter that has identified the concepts of self – defense3. Justification of UN Laws and Practice The question which often arises with the military force that responds to the non – state actor in an attack is based on the ideology of self and group defense. While there are specific measures which are taken by the UN with the practice of responding with military force, the regulations need to remain consistent with the agenda of international peace and security. This relates to the Security Council and the link to the military measures that are expected in Article 42. In this article there is the need to maintain and restore peace as one of the characteristics of the UN. If the measures of Article 51 are not taken with the correct measures, then there is interference of Article 42 and the security measures which are expected to maintain peace between both sides. The purposes for the provisions with Article 51 are then based on securing the role of the Security Council and the need to maintain and restore both peace and security in the given areas. This is combined with the need to maintain peace and to ensure that there are limits with the Article, specifically as this can change the level of authority with the Security Council and the expectations from the UN4. The combination of international law with the self and group defense of different nations then further combines with the obligations and the right which is associated with self defense. Even though there are specific concepts related to the Security Council to maintain the peace and security of an area, there is also an expected provision toward the military force. The international peace and security is violated if there is an attack against a non – actor of a state. This initial action violates the security and peace of the Security Council that takes place. This creates a humanitarian crisis between the nation that has been attacked and those that are attacking. The right to use military force becomes the main objective with the highlight on having the right to respond to the specific situation. Since the security and peace has already been violated, the response with military force becomes the main objective, specifically if it follows the regulations of the UN. The international law and the objective of responding to an attack that has already taken place and which is threatening to warfare or a specific space then becomes the main component of those that are working with the international law. The collective right is one which then is defined by not impairing the rights of others, as this is also a violation of the international peace and security as an objective to those that are associated with the attack5. Defining Self Defense An important component that is associated with the international law and the way in which this is related to the concept of military force comes with the definition of self defense. There are instances which the Security Council will not approve the ideologies of self defense because there is not a sense of victimization or an attack which has occurred. For example, many regions have the ability to develop nuclear weapons. Even if there is an understanding of this, there is not the ability to attack. The nuclear weapons do not attack or have a claim for the attack. This means that there is not a threat or self defense that is needed and immediately violates the safety and security between two nations. In this case, other performances and actions can be taken. For instance, suspension of hostilities may take place in which the nation becomes obligated to give up the defense weapons and to enhance the security and peace of the nation. There are also alternatives to make an agreement, such as a cease – fire or other treaty. In these instances, there is an agreement placed before the Security Council that the weapons and other complexities in the nation will not be placed in another country, leading to the peace and security being maintained6. The implications of self defense behind these expectations to keep the peace and security of a nation then open into the right and privilege which each group has to defend the nation or state which they are in. The self defense is based on keeping territorial integrity, self – preservation and the right of necessity. The definition of self defense then becomes important in determining if a military act can be performed in a given instance. The right of necessity and self – preservation are based on justifying unlawful conduct of the attack and responding in this particular manner. The concept of self defense is then not based on upholding integrity, but is instead a right for protection when there is a threatened force that moves into a specific territory and causes one to lose the amount of security and protection which is required for the state. Force as a reaction to continue with the security and protection through the military then becomes the right and is justified through the Security Council for protection and to stop the threats from continuing to attack in the given region7. Defining the Use of Force There are a variety of situations which define force and which create a deeper understanding of when the threats and the efforts prove complexities and difficulties within the region. The first is based on the understanding of humanitarian intervention. The intervention is one which holds a specific characteristic that poses the threat to international security and peace. The humanitarian concept is one which is based on the terror and threats harming those who have no form of self defense and which lose their inherent right through the attacks which occur. The protective operations which occur are then defined as ways to intervene with the need to have humanitarian protection for a given state. If force and violence takes over, then the right to interact and send in military force becomes the main objective and begins to lead into the humanitarian intercession that is associated with the different needs. The intervention is used for security and protection and continues with using military means to create peace with the humanitarian consideration as the priority for those that have been endangered8. The humanitarian prospects that is associated with self defense further with defining the rights of force and what this consists of. Usually, the non – state actors are not aiming toward the victims of a state or nation but are interested in the political actors and authoritarian figures that are being rebelled against. For terrorist groups and other instigators of non – state actions, this is the main objective. The power toward religious, political and cultural disassociations becomes the main concept that is associated with self defense. The reasoning becomes complex because the attacks are usually not aimed at creating victims with the humanitarian affairs of a given state. The need to have approval by the Security Council then becomes the main attribute with the regulation of what the attack is aimed toward. The attack on an individual or political figure is one which does not allow one to attack outside of the state as it still creates a lack of security and peace between both nations. The attack is one which then becomes based on the self defense that is associated with maintenance of security in terms of objectives toward foreign territory and the question of the attacks and intent behind the attack. While self defense is the inherent rights of all individuals, there are also questions of reasoning for military force and whether this is associated with the humanitarian rights and the defense of the state9. Anticipations of Self Defense Article 51 specifically states that a specific act of terror is required before a reaction is taking place. This is because of other methods that might be available to stop the action as well as protective measures which can be taken in the state for defense before the attack. The importance of this particular regulation is based on the aggression which may be between two countries. There are many that would try to stop the security and peace between two countries because of aggressive tendencies or disagreements that are between both regions. This breaks the international law toward peace and security and instead creates complexities with the attack. Military force that acts out of aggression toward another country without identifying the problem or showing an attack then may have alternative objectives and an agenda that is outside of the potential threats. The need to have the attack first then becomes the most important aspect that moves outside of the terror and which creates the need to define self defense from an alternative perspective10. There are many that believe that it is the inherent right of the nation and state to take the correct actions. However, the international law is required for the security and peace to be maintained. The debate which is created is based on how much of a right a nation or state has to defend themselves against other attacking parties that are outside of the state. The inherent right that is then built with those that are working with the international law is then regulated according to the interpretations which come from Article 51 and the way in which this is maintained. The concept is one which is furthered with the need to create specific security decisions and which is based on the rights that one has toward specific types of security measures. The natural law of having self defense is then questioned according to whether a state can anticipate the law and take action as opposed to the international law, which states that the self defense can only be taken after an attack11. The right to self defense is then defined as the ability to strategically work with the regulations of international law while finding a different format for the defense. The first phase of this is the anticipation. At this phase, the state can begin to protect and regulate any attacks while working toward other formats of resolutions. A tactic for self defense which is offered through the UN is to find peaceful means of resolution without the attack. If there is anticipation that an occurrence will happen, then protection to stop the victimization and other formats to begin to alter how one is reacting toward the international law are required to respond to the threat of the attack. The next phase is with pre-emption followed by prevention. These two phases require specific responses that allow for peaceful measures and security means to be taken against the attacks, similar to the responses with anticipation. During these three phases there is the ability to redefine other potential measures which can be taken while developing the correct application to the self defense and what is occurring. The forces which are associated with this then develop a different understanding of the potential threats and the way in which these can be looked into. The immediacy which is a part of the regulation plays into this particular role, specifically because the correct measures need to be taken and other definitions of the threats need to be examined12. Justifications of Self Defense While there are specific applications toward self defense and when this can be taken, there are also exceptions that are now expanding toward what several need. The justifications are based on different excuses which are used by states and which constitute abandoning the self defense regulations of the UN. There are many states that are now finding ways to stretch what is permissible with self defense and which constitutes the same rights that are associated with the defense system. The narrow areas are leading to changes in regulations and justification of actions which are being taken. The justifications are expanding to the definition of armed attack, rights of the states to non – states and changing regulations that are associated with the attacks. The question which comes up is based on the freedom of action which many states believe should belong outside of the international laws and regulations which are expected by the UN. The question which is associated with this is based on whether the triggers are able to constitute with a change with the freedom of action and what is occurring. Expanding the interpretation, handing over more rights and looking at concepts such as freedom of action are expressions which are being regulated by state options and the principles associated with this. The question which arises is then based on the expanding definition of self defense and when this should be justified without becoming pessimistic or losing the freedom of action which should be granted to each state13. The question of freedom of action and the discrepancies that justify an attack furthers with the complexities of an attack which are associated with the expectations by the UN. The use of specific weapons and the dangers which this presents creates a question of when justified self – defense should take place. For instance, nuclear weapons that are a threat between two opposing countries may not be able to offer the correct type of force or response from those that are associated with the self defense. If a weapon of mass destruction, such as a nuclear weapon, is the main force which is used, then self defense will not matter after the attack. This means that the ability to combat and protect or to anticipate the problems becomes more controversial because of the laws which are set into place. The cardinal principles and humanitarian laws from the UN become complex because of the new dangers of terrorism, weapons and defense tactics required. The protocol for armed conflicts has begun to alter because of this, leading to debates in what the humanist vision pertains to and how this may affect different states if the correct freedom of action and precautions against attacks are taken14. The non – state attacks and the responses from the states that are working in defense are no longer looking at the recommendations and assumptions from the UN. This is occurring with the desire to take freedom of action, aggression which is associated with the acts which are taken and the belief that a defensive force should be put into place immediately. Each of these is changing the international standard requirements and the actions that are associated with the attacks. This particular set of questions began to arise after the 2003 attack to Iraq in which the international legal standards were not followed and which pre-emption measures were taken against the neighboring countries. However, the defensive force and the actions taken become based on taking defensive action and showing that this is legitimate when later looking at the international legal standards. The result is that the alternative as not being accessible is creating questions over the validity of the measures and standards and why these need to be taken, specifically with immediacy and the need to protect a state through military force as a fundamental right15. Case Studies The first study which shows the controversies and application with the international law for self defense is the Caroline and McLeod cases. The beginning of this was when it was believed that the American Caroline had been used for ferry weapons that were distributed to Canada and was smuggled into the area. The rebellion arrested those who were thought to carry and smuggle the weaponry into Canada with the belief that there was forced use of the guns and gunpowder during the smuggling. Even though the guns and other weaponry were found, the smuggling never led to an attack in Canada. The controversy was based on the main suspects not being Canadian. If the weapons were smuggled, then it would have led to a terrorist attack and an incident of violence between America and Canada. In this particular case, the trial for the international law could not account for an arrest or breaching of the law. There was no need for self defense because the weaponry had not been fired. There was also no need for self preservation because the smuggling may or may not have been related to the incident between Canada and America. Since no action was taken, the legal doctrine did not account for the rebellion or anything which occurred, then leading to a dismissal of the rebellion being a part of the smuggling of weaponry or the need to have self defense in response to the actions. The controversy toward self defense and preservation came from the weaponry being on the grounds of Canada and the contradictions which were related to both defense and to the actions which were heard but which did not carry enough evidence for the correct response16. Another incident which shows the controversy of the international law and the need to define different components is the case of military and parliamentary activities in Nicaragua. In this instance, mining of ports and taking of oil took place through an invasion with economic pressure that was placed on the nation to respond in a specific manner. In this instance, there was no threat that was related to weaponry or forms of attack, meaning that the self defense was not applicable in the instance. The question which arose, since the attack was not armed, was based on how to defend and protect the country without the use of arms. The question furthered with humanitarian rights as the taking away and mining of oil from the country and the way in which this was approached also caused economic and social struggle for those living in Nicaragua. The complexity was not only based on the pressures from the region but also was indicative of the assistance requested by Nicaragua before the filing to take provisionary measures from the oil which was being taken and mined by the United States. This response was not complied with and a Treaty of Friendship, Commerce and Navigation was signed by the parties instead. Even though no direct military action had been taken, the court proceedings ruled in favor of Nicaragua in violation of the initial treaty. This occurred as the United States was recruiting, training, arming, equipping, financing and supplying military and parliamentary actions in Nicaragua. This posed a threat to Nicaragua since it was taking place within the country and required a reaction by self defense. Furthermore, it broke the initial treaty which was signed by both countries with the violations that occurred. This had led to damages, not through the actions of the United States, but instead through the training of military that then took military action against the country. Initially, the compliance with the UN and the United States was that there was a democratic coalition government associated with the operations. However, other violations had been taken that were later expressed in the argument, showing that Nicaragua had the right to take self defense if the threats against the United States continued17. This example shows that, while there was no direct violence from the United States, there was still violation of the law. Outbreaks of violence, encouragement of military action and the threats with the mining all led to the same types of violations and the need for Nicaragua to move into self defense throughout the country. While the technicalities of the international law had not been broken, the strategies that were encouraged by the other country violated the actions which were taken. An advisory opinion has been created in regards to the legality and threat of nuclear weapons and how this alters the ability to have self defense and respond in the correct manner by specific countries. In this particular advisory, there is a notification that it is understood that there is a strong threat with nuclear weapons and the destruction which is posed with the various threats of the weapons. Resolutions made with other cases dating 1961, 1978, 1980, 1981 and 1990 were based on the understanding of nuclear weapons as a crime against humanity and a violation by the charter created from the UN. The approach was to create an approach to prohibit and eliminate all nuclear weapons and weapons of mass destruction as a protective measure. The protective measure furthers with the understanding that mass destruction carries threats with political and social implications, making the problem more complex as it immediately shows a threat to the non – states that are creating and determining the use of the nuclear weapons. The only time which it was advised to have nuclear weapons was to create a relation to the international law with the circumstance of self defense. However, since the nuclear weapons pose a threat to all of humanity, this particular alternative is not available. The humanitarian law was then one which was defined by the understanding that nuclear law should be prohibited. The weapons and the debates caused was based on the power of nuclear weapons, specifically which could wipe out races and large groups of people. The concept of self defense then changed into the understanding that all nuclear weapons should be prohibited and should be taken so there is no capacity of different groups to take actions with the nuclear weapons. The international law then changes into a provision in which the need to take away the nuclear weapons and to alter the capacity of using these weapons be terminated as a consistent means of self defense and the meeting of humanitarian law18. The concepts associated with humanitarian law, self defense and the measures taken are seen not only in the advisory opinions and laws which are created from those working with the legalities. Another principle which is associated with this is the twin towers attack which occurred in New York on 9/11. The implications of this were based on the attack of terrorists that moved into the United States and posed a threat. The response from the United States was to respond to the attack through self defense measures and by sending military force into the land where the attack was believed to take place. The complexity which arose from this was with the Geneva Act of humanitarian acts, specifically with the United States deciding to go back into the country of the attack instead of taking protective or self defense measures. This was furthered with the current Operation Enduring Freedom against Afghanistan which was moving against the customary rights of the United States form the international law of the UN. The security which was supposed to be placed in both instances and the decision of the United States to continue to act, despite the provisionary measures recommended by the UN shows that the concept of freedom of action is one which is based specifically on the organizations and ways in which the responses occurred. The concept of developing collective security and understanding international legal order in both instances create a question of where the self defense should begin and how this affects the humanitarian acts that take place19. Conclusion The concepts which are related to the international order and the way in which these create responses is a vital issue with the changing states of terrorism and attacks which are occurring. According to Article 51 of the UN charter, there is not the ability to take action unless a non – state becomes an actor that leads to self defense actions. In this instance, a state can take military force from the non – state that has attacked. The self defense has further provisions of when this is necessary, what types of precautions should be taken and how this associates with humanitarian rights. Specific weapons and types of attacks become congruent with the responses taken. The complexity with this is one which is now built on the new terrorism, weapons of mass destruction and the belief of the right to have freedom of action with the defense which is needed. Assumptions for the attack and protective measures being taken before the attack are other considerations which are placed and developed. Each of these creates different associations with the UN and this structure in terms of humanitarian rights and self defense. References Bowett, D. Self Defense in International Law. (Manchester University Press, UK 1998). Cassese, Antonio. The Current Legal Regulation of the Use of Force. (Martinus Nijhoff Publishers, Netherlands, 1986). Chazournes, Laurence, Philippe Sands. International Law, the International Court of Justice and Nuclear Weapons. (Cambridge Press, UK, 1999). Conforti, Benedetto. The Law and Practice of the United Nations. (Koninklijike, Netherlands, 2005). Damrosch, Lori. Law and Force in the New International Order. 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