International Law And The Use Of Force

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ISBN: 9781587787812 | 1587787814
Cover: Hardcover
Copyright: 12/31/2004

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This law school casebook brings together cases and materials on both the law governing the resort to armed force ?jus ad bellum? and the law governing the conduct of force ?jus in bello.? It provides a classic introduction for students, scholars, and practitioners. The book explores the United Nations Charter rules, and the Hague and Geneva Conventions as central to the regulation of armed force. There are also chapters on the historic development of international law on the use of force and important cases from the last ten years.

Introduction

Acknowledgements

Table of Cases

xxiii

PART I. THe Study of International Law on the Use of Force

What Do We Mean By the Use of Force?

(20)

The Classic Meaning of War

(4)

Ian Brownlie, International Law and the Use of Force by States

(1)

Naulilaa

(2)

The End of ``War,'' The Continuing Use of Force

(12)

The U.N. Charter and the End of ``War''

(1)

The Meaning of Armed Conflict

(1)

Prosecutor v. Tadic

(2)

Hamdi v. Rumsfeld

(1)

Military and Paramilitary Activities in and Against Nicaragua

(3)

The Meaning of the Use of Force

(1)

The Red Crusader

(1)

The Corfu Channel Case

(4)

Notes, Questions, and Problems

(3)

Two Case Studies on the Use of Force

(61)

The Iraqi Invasion of Kuwait (1990)

(27)

UN Security Council Resolution 660 (1990)

(1)

Invading Iraqis Seize Kuwait and Its Oil; U.S. Condemns Attack, Urges United Action

(3)

Iraq-Kuwait

(3)

UN Security Counsil Resolution 661 (1990)

(1)

Address to the Nation Announcing the Deployment of United States Armed Forces to Saudi Arabia

(3)

UN Security Council Resolution 678 (1990)

(1)

Amnesty International, Iraq/Occupied Kuwait Human Rights Violations Since 2 August, December 19, 1990

(1)

Baker, Aziz Describe Six Hours of Talking Past Each Other

(1)

U.S. and Allies Open Air War on Iraq, Bomb Baghdad and Kuwaiti Targets; `No Choice' but Force, Bush Declares

(1)

Bush Calls Halt to Allied Offensive: Declares Kuwait Free, Iraq Beaten; Sets Stiff Terms for Full Cease--Fire

(3)

UN Security Council Resolution 686 (1991)

(2)

UN Security Council Resolution 687 (1991)

(7)

UN Security Council Resolution 688 (1991)

(1)

The US--Led Invasion of Iraq (2003)

(32)

UN Security Council Resolution 1360 (2001)

(1)

Address to the United Nations General Assembly in New York City

(4)

UN Security Council Resolution 1441 (2002)

(4)

United Nations Security Council Fifty-eighth year, 4707th meeting Friday, 14 February 2003, 10 a.m. New York

(2)

Annan Says U.S. Will Violate Charter if it Acts Without Approval

(2)

U.S. Begins Attack With Strike at Baghdad After Deadline for Hussein to Go Runs Out

(3)

Operation Iraqi Freedom

(2)

Letter from the United Kingdom to the United Nations

(1)

Letter from the United States to the United Nations

(1)

Pentagon Warns Iraq Not to Harm Prisoners

(2)

UN Security Council Resolution 1483 (2003)

(5)

Saddam: The Capture/Saddam Trial/Iraqis Eye Quick Execution, but Others Not So Sure

(1)

Report of the International Committee of the Red Cross (ICRC) on the Treatment By the Coalition Forces of Prisoners of War and Other Protected Persons By the Geneva Conventions in Iraq During Arrest, Internment and Interrogation

(3)

Notes and Questions

(2)

What Is the Role of Law in the Use of Force?

(23)

Is Law on Force Possible?

(8)

Carl Von Clausewitz, The Maximum Use of Force

(1)

Michael Howard, Constraints on Warfare

(1)

Quincy Wright, Law, War, and Peace

(2)

John R. Bolton, Clinton Meets ``International Law'' in Kosovo

(1)

Mary Ellen O'Connell, Search and Seizure v. The Proliferation Security Initiative

(1)

Statement by President: Panama's Signing of Ship Boarding Agreement

(2)

Resort To Force: Jus Ad Bellum

(6)

Thomas M. Franck, Who Killed Article 2(4)?

(1)

Louis Henkin, The Reports of the Death of Article 2(4) Are Greatly Exaggerated

(2)

Military and Paramilitary Activities in and Against Nicaragua

(2)

Oil Platforms Case

(1)

The Application of Force: Jus In Bello

(4)

Geoffrey Best, The Jus In Bello Vindicated

(4)

The Interconnections of Jus Ad Bellum and Jus In Bello

102

(1)

Christopher Greenwood, The Relationship Between Ius Ad Bellum and Ius In Bello

103

(1)

Notes, Questions, and Problems

103

(3)

PART II. The Historic Development of International Law on the Use of Force

Restricting the Resort to Force

106

(44)

From Rome to The Hague

106

(19)

Hugo Grotius, The Law of War and Peace

111

(4)

The Peace of Westphalia

115

(4)

Vienna Congress Treaty

119

(2)

The Caroline

121

(4)

The Hague Convention

125

(22)

From The Hague to Nuremberg

126

(1)

The Covenant of the League of Nations

127

(5)

Treaty Providing for the Renunciation of War as an Instrument of National Policy

132

(2)

Trial of the Major War Criminals Before the International Military Tribunal

134

(9)

Goring

143

(2)

Von Ribbentrop

145

(2)

Notes, Questions, and Problems

147

(3)

Regulating the Application of Force

150

(60)

From Rome (Again) to The Hague (Again)

150

(19)

Geoffrey Parker, Extending the Laws of War

151

(4)

Hugo Grotius, The Law of War and Peace

155

(2)

The Lieber Code

157

(4)

Ex Parte Milligan

161

(5)

Regulations Respecting the Laws and Customs of War on Land

166

(3)

From The Hague to Tokyo

169

(36)

The Treaty of Versailles

170

(1)

Captain Emil Muller

171

(6)

Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare

177

(1)

Ex Parte Quirin

178

(6)

Goring

184

(1)

Donitz

185

(7)

Yamashita v. Styer

192

(13)

Notes, Questions, and Problems

205

(5)

PART III. The Contemporary International Law on the Use of Force

The Basic International Law and Institutions on Resort to Force

210

(30)

The Charter's History

211

(8)

Stephen C. Schlesinger, Act of Creation: The Founding of the United Nations

212

(5)

Richard C. Edis, A Job Well Done: The Founding of the United Nations Revisited

217

(2)

Charter Rules

219

(8)

Chapter I Purposes and Principles

220

(3)

Chapter VI Pacific Settlement of Disputes

223

(1)

Chapter VII Action with Respect to Threats to the Peace, Breaches of the Peace, and Acts of Aggression

224

(3)

Chapter XVI Miscellaneous Provisions

227

(1)

UN Organs

227

(11)

Chapter III Organs

227

(1)

Chapter V The Security Council

228

(3)

Chapter IV The General Assembly

231

(3)

Chapter XV The Secretariat

234

(1)

Chapter XIV The International Court of Justice

234

(2)

Chapter VIII Regional Arrangements

236

(2)

Notes, Questions, and Problems

238

(2)

Unilateral Action

240

(81)

Self Defense

240

(45)

The Purpose of Defense

240

(1)

The Corfu Channel Case

240

(6)

Armed Attack

246

(1)

Security Counsel Consideration of a Complaint by Iraq, 8 June 1981

246

(6)

UN Security Council Resolution 487 (1981)

252

(2)

Military and Paramilitary Activities in and Against Nicaragua

254

(4)

The National Security Strategy of the United States of America, September 2002

258

(1)

Extract from Debate in the British House of Lords, April 21 2004

259

(2)

Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory

261

(3)

Against the Responsible Party

264

(1)

Oil Platforms Case

264

(14)

Necessity and Proportionality

278

(1)

Legality of the Threat or Use of Nuclear Weapons

278

(2)

Oil Platforms Case

280

(2)

Reporting

282

(1)

Military and Paramilitary Activities, in and Against Nicaragua

283

(2)

Intervention

285

(33)

Internal Conflicts

285

(1)

Louise Doswald--Beck, The Legal Validity of Military Intervention By Invitation of the Government

285

(3)

The Panamanian Revolution: Diplomacy, War and Self--Determination in Panama, Remarks by Abraham D. Sofaer

288

(7)

UN General Assembly Resolution 44/240 (1989)

295

(1)

UN Takes over Peacekeeping in Volatile Ivory Coast

296

(2)

Leave Now, French Troops are Told by Government Supporters in Ivory Coast

298

(1)

Humanitarian Crises

299

(1)

Ian Brownlie, Humanitarian Intervention

299

(7)

Richard Lillich, Humanitarian Intervention: A Reply to Ian Brownlie and a Plea for Constructive Alternatives

306

(9)

Nehal Bhuta, ``Paved with Good Intentions. . . '':---Humanitarian War, the New Interventionism and Legal Regulation of the Use of Force

315

(3)

Notes, Questions, and Problems

318

(3)

Collective Action

321

(61)

United Nations Collective Action

321

(25)

Peacekeeping

322

(1)

Certain Expenses of the United Nations

323

(8)

Peace Enforcement

331

(1)

Report of the Secretary--General Pursuant to General Assembly Resolution 53/35 The Fall of Srebrenica

332

(12)

UN Security Council Resolution 1529 (2004)

344

(2)

Collective Action Through Other (Non--UN) Arrangements

346

(32)

Security Threats

347

(1)

State Department Memorandum Legal Basis for the Quarantine of Cuba, October 23, 1962

347

(8)

Christopher C. Joyner, Reflections on the Lawfulness of Invasion

355

(1)

Treaty Establishing the Organization of Eastern Caribbean States

356

(1)

The Situation in Grenada

356

(1)

Humanitarian Crises

357

(1)

Marco Gestri, The ECOWAS' Operations in Liberia and Sierra Leone: Amnesty for Past Unlawful Acts or Progress Towards Future Rules?

357

(6)

Security Council Backs Nigerian--Led Force in Liberia

363

(2)

Legality of Use of Force

365

(13)

Notes, Questions, and Problems

378

(4)

The Basic Law and Institutions on Application of Force

382

(62)

Post--War Developments

384

(5)

Frits Kalshoven, Geneva

385

(1)

Josef Kunz, The Chaotic Status of the Law of War and the Urgent Necessity for Their Revision

386

(3)

The Conventions

389

(46)

The 1949 Geneva Conventions

389

(1)

Geneva Convention Relative to the Treatment of Prisoners of War of August 12, 1949

390

(5)

Geneva Convention Relative to the Protection of Civilian Persons in Time of War of August 12, 1949

395

(5)

The 1954 Hague Convention

400

(1)

1954 Convention for the Protection of Cultural Property in the Event of an Armed Conflict

400

(1)

The 1977 Additional Protocols

401

(1)

1977 Geneva Protocol I Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts

402

(9)

1977 Protocol Additional II to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non--International Armed Conflicts (Protocol II)

411

(3)

Letter of Transmittal from Ronald Reagan, President of the United States of America to the United States Senate

414

(2)

Hans--Peter Gasser, An Appeal for Ratification by the United States

416

(6)

The 1998 Rome Statute of the International Criminal Court

422

(1)

Leila Nadya Sadat, The Evolution of the ICC: From The Hague to Rome and Back Again

423

(5)

1998 Rome Statute of the International Court

428

(5)

Knut Dormann & Louis Maresca, International Criminal Court (``ICC'')

433

(2)

The International Committee of the Red Cross

435

(4)

Fritz Kalshoven, Constraints on the Waging of War

437

(2)

Statutes of the International Red Cross and Red Crescent Movements

439

(1)

Notes, Questions, and Problems

439

(5)

Civilians

444

(78)

Civilian Status and Protections in Hostilities

445

(43)

Prosecutor v. Stanislav Galic

445

(7)

U.S. v. Calley

452

(10)

Bankovic and Others v The Contracting States also parties to the North Atlantic Treaty

462

(13)

Final Report to the Prosecutor By the Committee Established to Review the Nato Bombing Campaign Against the Federal Republic of Yugoslavia

475

(13)

Protections During Occupation

488

(30)

Beit Sourik Village Council v. 1. The Government of Israel 2. Commander of the IDF Forces in the West Bank

488

(12)

Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory

500

(18)

Notes, Questions, and Problems

518

(4)

Combatants

522

(58)

Combatant Status and Detention

523

(40)

Hamdi v. Rumsfeld

523

(7)

Memorandum From: William J. Haynes II, Subject: Enemy Combatants

530

(4)

George H. Aldrich, The Taliban, Al Qaeda, and the Determination of Illegal Combatants

534

(7)

Detainees at Guantanamo Bay, Cuba, Request for Precautionary Measures

541

(3)

Hamdi v. Rumsfeld

544

(2)

Prisoners of War Ethiopia's Claim 4 (Part 3), (Partial Award)

546

(11)

The Director of Public Prosecutions vs T

557

(5)

FM 34--52 Intelligence Interrogation

562

(1)

Restrictions in Hostilities

563

(7)

The Concept of ``Surrender'' in the Conduct of Combat Operations

565

(5)

Command Responsibility

570

(6)

Prosecutor v. Tihomir Blaskic

570

(6)

Notes, Questions, and Problems

576

(4)

PART IV. The Future Development of International Law on the Use of Force

Proposing the Future

580

(33)

Ad Bellum Proposals

580

(12)

Karl M. Meessen, Unilateral Recourse to Military Force Against Terrorist Attacks

580

(5)

Lee Feinstein and Anne--Marie Slaughter, A Duty to Prevent

585

(7)

In Bello Proposals

592

(19)

Notes and Questions

611

(2)

Francisco Forrest Martin, Using International Human Rights Law for Establishing a Unified Use of Force Rule in the Law of Armed Conflict

592

(14)

Ove Bring, International Humanitarian Law After Kosovo: Is Lex Lata Sufficient?

606

(7)

Index

613

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International Law And The Use Of Force

Summary

Table of Contents

Supplemental Materials