CYIL Vol. 7, 2016

CYIL 7 ȍ2016Ȏ SOME CRITICAL REFLECTIONS ON THE EXTENDED USE OF MILITARY FORCE… – The use of military force – different concepts, starting with a brief general overview of the prohibition of the use of force and analysing the UNSC authorization and “unilateral” use of military force – Armed interventions with regard to arguments for their justification – Aggression, armed attack and self-defence – Rescue of nationals abroad and intervention on invitation After the Cold War we have witnessed renewed attempts and strengthening efforts to interpret Art. 2(4) narrowly, allowing the use of armed force for military interventions. 5 B. Simma e.g. stressed the “subordination” of NATO’s armed actions to the principles of the UN Charter. 6 There is emerging a new view that the law on use of force has already been modified by the UNSC practice and by the practice of the UN member’s states. However, it seems to be clear that any formal modification (by Charter amendment) of the principle of non-use of force is highly unlikely. To justify certain activities involving the use of force, the states mainly rely on the exercise of their right of individual or collective self-defence. Various attempts to justify “relaxation” of the use of force prohibition of Art. 2 (4) now exist. International law experts are deeply divided in their views on the “legality” and “legitimacy” of armed (especially humanitarian) interventions. Art. 2(4) of the UN Charter stipulates that “all Member States shall refrain in their international relations from the threat or use of force”. There are in principle two exceptions from this absolute prohibition: 1) the right to individual or collective self-defence under Art. 51; and 2) the right to take armed actions individually and collectively upon decision of the UNSC under Chapter VII (actions with respect to threats to the peace, breaches of peace and acts of aggression). Art. 2(4) was originally centred on inter-state armed conflicts and not on internal conflict. The pre-Charter international law was concerned mainly with international military conflicts (wars). At present the great majority of armed conflicts, situations threatening international peace and security relate to originally internal (non- international) conflicts, which often later became “international.” In fact, the UNSC many times proclaimed even non – international (civil) conflicts as “threats to international peace and security”. In R. Wedgwood’s view, a broadened interpretation of Chapter VII may “justify a wider reading of Article 51” and Chapter VIII as well, embracing a right of “collective self-defence” against a government’s “armed attacks on its own population…” 7 The notion “collective self-defence against 5 See MRÁZEK, J. The Right to Use Force in Self- Defence. CYPPIL . Vol. 2, 2011, pp. 33-56. 6 See note 2, p. 1. 7 WEDGWOOD, R. Unilateral Action in the UN System. EJIL . Vol. 11, 2000, No. 2, p. 356. – Self-defence and armed attack by non-state actors 2. The Use of Military Force – Different Concepts 2.1 Prohibition of the use of force – a brief general overview


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