Deliberations about war were expected to pass through these priests, who would seek a judgment of the gods about the justice of the proposed course of action. If it was decided that a grave breach of the peace had in fact occurred, such that a just war would be warranted, the fetials would first approach the guilty city to demand redress. If, after a certain period of time, no satisfaction was given, war could begin. (...) Declarations of war were cast in form of a lawsuit, in which the verdict transmitted by the fetials was meant to decide on the question whether the war could be rightly waged. Whether or not a war should be waged (to enforce a verdict) would then be the matter for a new decision, to be rendered by the king, the senate, or even (in later periods) the entire people. (Reichberg et al., 2006, pp. 47–8)
prevention and removal of threats to the peace, [...] the suppression of acts of aggression or other breaches of the peace, [...] and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace.
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, or in any other manner inconsistent with the Purposes of the United Nations. (Article 2(4) UN Charter)
necessity of self-defence, instant, overwhelming, leaving no choice of means and no moment for deliberation
the act justified by the necessity of self-defence, must be limited by that necessity, and kept clearly within it. (Webster and Fox, 1857)
Acting under Chapter VII of the Charter of the United Nations, [...] 2. Decides also that all states shall: (b) Take the necessary steps to prevent the commission of terrorist acts [...].
The war against terrorists of global reach is a global enterprise of uncertain duration. [...] And, as a matter of common sense and self-defence, America will act against such emerging threats before they are fully formed.
If international law is, in some ways, at the vanishing point of law, the law of war is, perhaps even more conspicuously, at the vanishing point of international law. (Lauterpacht, 1952)
In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions: Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed ‘hors de combat’ by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria. To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons: violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; taking of hostages; outrages upon personal dignity, in particular humiliating and degrading treatment; the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples. The wounded and sick shall be collected and cared for. An impartial humanitarian body, such as the International Committee of the Red Cross, may offer its services to the Parties to the conflict. The Parties to the conflict should further endeavour to bring into force, by means of special agreements, all or part of the other provisions of the present Convention. The application of the preceding provisions shall not affect the legal status of the Parties to the conflict.
CIVILIANS | COMBATANTS |
---|---|
do not take part in hostilities | do take part in hostilities |
do not have a right to take part in hostilities (have the right to be respected) | have the right to take part in hostilities and have the obligation to observe the rules of IHL |
may be punished for participation in hostilities | may not be punished for the mere participation in hostilities (but will be punished for committing violations under IHL) |
generally: are protected because they DO NOT participate in hostilities | are protected WHEN they no longer participate in hostilities |
The threat or use of force across state borders by a state (or a group of states) aimed at preventing or ending widespread and grave violations of the fundamental human rights of individuals other than its own citizens, without the permission of the state within whose territory force is applied. (Holzgrefe, 2003, p. 18)
There can be no doubt that the provision of strictly humanitarian aid to persons or forces in another country, whatever their political affiliations or objectives, cannot be regarded as unlawful intervention, or as in any other way contrary to international law (Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America) ICJ Rep 1986, 242)
‘Humanitarian war’ is a contradiction in terms. War and its consequences, bombing and maiming people can never be part of human rights and morality. (Douzinas, 2000, p. 141)
I indicated that critics of humanitarian intervention are not pacifists. They object to this kind of war, a war to protect human rights. They do not object to wars, say, in defense of territory. This position is somewhat anomalous because it requires separate justifications for different kinds of wars. [...] Take the use of force in self-defense. What can possibly be its moral justification? Very plausibly, this: that the aggressor is assaulting the rights of persons in the State that is attacked. The government of the attacked State, then, has a right to muster the resources of the State to defend its citizens’ lives and property against the aggressor. The defense of States is justified qua defense of persons. There is no defense of the State as such that is not parasitic on the rights and interests of individuals. If this is correct, any moral distinction between self-defense and humanitarian intervention, that is, any judgment that self-defense is justified while humanitarian intervention is not has to rely on something above and beyond the general rationale of defense of persons. (Tesón, 2003, p. 99)
[…] the arguments in support of unilateral humanitarian intervention do not stand up to close scrutiny. [...] By virtue of the Charter of the United Nations, only the Security Council is empowered to take forcible action against a State which is in breach of its international undertakings to respect human rights. (Dinstein, 2011, p. 74)
Intervention will be where and how US power chooses, the guiding consideration being: ‘What is in it for us?’ [...]. To be sure, the ‘vision’ is cloaked in appropriate rhetoric about ‘democracy’ and all good things, the standard accompaniment whatever is being implemented, and by whom, hence meaningless – carrying no information, in the technical sense. The declared intent, the record of planning, and the actual policies implemented, with their persistent leading themes, will not be overlooked by someone seriously considering ‘humanitarian intervention’, which, in this world, means intervention authorized or directed by the United States. (Chomsky, 1994)
The substantial denial of women’s rights – whether civil, political, economic, social, or cultural – has never served as the sole or primary basis for military intervention. [...] These calls intensified when the Taliban began imposing a form of gender apartheid in Afghanistan. It took the attack of September 11th, however, for the United States to mobilise Operation Enduring Freedom in Afghanistan. Although the plight of women under the Taliban was not a prime motivator for the intervention, the rhetoric surrounding the intervention appropriated feminist concerns about the quality of women’s lives under Taliban rule to garner the support of domestic and international constituencies for the Operation. Indeed, the propaganda value of violence against women has long been recognised. To date, preventing harm to women has served only as a convenient makeweight argument in the service of interventions initiated for other rationales. (Van Schaack, 2011, p. 477–8, 488–9)
Sovereign States have a responsibility to protect their own citizens from avoidable catastrophe – from mass murder and rape, from starvation – but when they are unwilling or unable to do so, that responsibility must be borne by the broader community of states. (ICISS, 2001, p. viii)
State sovereignty, in its most basic sense, is being redefined—not least by the forces of globalisation and international co-operation. States are now widely understood to be instruments at the service of their peoples, and not vice versa. At the same time individual sovereignty—by which I mean the fundamental freedom of each individual, enshrined in the charter of the UN and subsequent international treaties—has been enhanced by a renewed and spreading consciousness of individual rights. When we read the charter today, we are more than ever conscious that its aim is to protect individual human beings, not to protect those who abuse them. (Annan, 1999)