CYIL Vol. 7, 2016

CYIL 7 ȍ2016Ȏ SOME CRITICAL REFLECTIONS ON THE EXTENDED USE OF MILITARY FORCE… violation of the ius cogens principle prohibiting the use of armed force. Art. 53 must be understood in the context of Art. 51 and Art. 2 (4). Humanitarian and all military interventions without UNSC approval are formally outside the existing international legal framework. Ex post facto legalization of the use of armed force means that the prohibition of the use of force was violated and only subsequently was it found that some justifications may exist. Such a justification as a rule gives rise to doubts and controversy, especially when justification was brought by states and their political and legal representatives involved in originally unlawful military action. There has always been a general tendency by international law infringers to seek authorization of their own unlawful behaviour. Returning to the ex post facto legalisation of NATO’s intervention in Serbia, A. Pellet e.g. characterized this way of legalization as “unfortunate” and introducing into the international legal order “a part of uncertainty which is deeply repugnant to the very function of law in any society…” 51 Even when the UNSC endorsed the consequences of any armed intervention with the aim of preventing possible damage, it does not mean necessarily that this intervention was recognized by the UNSC as lawful. If the UNSC determines that massive violations of human rights within a country constitute a threat to the peace and authorizes military enforcement action, a humanitarian intervention is considered legitime and lawful. There is no general recognition of humanitarian intervention. Nevertheless, there are resolute proponents of the use of military force for humanitarian purposes. According to the ILA Report, the UK government was in favour of an “exceptional and strictly limited justification for the use of force to avert humanitarian catastrophe but not for a “general right of humanitarian intervention.” 52 The Report supports as justifiable a limited use of armed force without UNSC authorisation, resting on some exceptional justification of necessity, when that was the only means to avert an immediate and overwhelming humanitarian catastrophe. No such unilateral right is, however, embodied in the existing positive conventional norms of public international law. The power to authorize intervention for humanitarian purposes is vested in the UNSC. 4. Aggression, Armed Attack and Self – Defence 4.1 Aggression The concept of “aggression” has been used together with the concept of “force” and “armed attack”. 53 The relationship between aggression and armed attack as two “independent” notions has never been clear enough. The term “aggression” had been considered to be too controversial, even during the UN Charter negotiations 51 Supra note 42, p. 389. 52 See supra note 1, p. 23. 53 MRÁZEK, J. The Definition of Aggression and the Use of Force. CYPP , Vol. 5, 2014, p. 67.


Made with