Use of Force

UN Charter
Chapter VI: peaceful settlement of disputes (nonbinding)
Chapter VII: enforcement (binding)

Article II/4 “All members… shall refrain from force”
permitted action: self-defense after armed attack (51)

3 Situations for Lawful Self-Defense
1) if an armed attack has occured (whether by state or non-state party)
2) imminent threat of armed attack (Carrolene case from 19th century, US v. Canada/UK)
3) “anticipatory self-defense” – six day war – UNSC didn’t condemn — so assent through silence?
Bush) right to use force without imminent threat of attack?

Remember, question of “Recourse to War” different from “Conduct of War”

John Yew (former DOJ) argues Iraq was in material breach — defends war that war

The Two “Legally Binding” UN actions:
Chapter VII (from UNSC)
Budget & “Contributions” (from General Assembly)

In Cuban Missle Crisis, Abraham Sheas – legal advisor to State Department — creatively used the law to help his department

battling ideas: “The Ideas that Conquered the World”

“clear and present danger” == “imminment danger” (?)

How do “no fly zones” work with “quarantines” — ambiguous non-interventions?

legal standing of nontechnocratic/nonindustrialized great power force exchange?

q: do military alliances contradict the logic of global collective security?

UNSCR 1441 “perfect example of diplomatic ambiguity”

ICJ “less political” / “more legal” than UNSC because ICJ decisions “should be” taking only legal reasoning into account


legal refers to rule of law
political refers to rule of ???? (power?)

“New Haven School of International Law” explicitly shows judges as politicla operators, politicals in the context of laws
Article XXV – states shall carry about decisions of the UNSC made under Chapter VII
“law exists to enhance sense of obligation” — social pychology / social cognition implications?

In Libya case, ICJ acted as if it could review UNSCRs — but upheld the UNSCR
but, has UNSC ever acted as if it could review ICJ decisions?
Libya case was similar to Marbury v. Madison

US seems to favor UNSC over ICJ, because UNSC is more useful / US has more influence there
– because ICJ negativist, UNSC positivist?

Legal Status of Humanitarian Intervention
– legally grey & opaque
– on Kosovo, that Russia didn’t get its condemnation passed was backhanded approval? (like Six Day War but moreso?)

R2P: Canada’s “Responsibility to Protect” report
– argues that state soveregnty implies a responsibility to protect
– but no treat on humanitarian intevention (opposed by Gap / Global South, mostly)
– African Union says humanitarian intervention OK as long as AU approves
– UNSC can authorize anyway under “international peace and security” considerations
– R2P end of Westphalia?

As Kosovo War went on, “dual use” targets were used, North Atlantic Council listened to less, etc

Carlo Deponte, head prosecutor for ICJY, declines to charge NATO personell

“proportionality” is one of the vaguest parts of the law of war

6 thoughts on “Use of Force”

  1. ” ICJ “less political” / “more legal” than UNSC because ICJ decisions “should be” taking only legal reasoning into account”

    Should but doesn't – the judges are now highly ideological, notably CG Weeramanty, a nuclear disarmament and transnational progressive extremist who also orchestrates various NGO's and substitutes his political positions for international law on a regular basis

    ( a common tactic of IL activists is to take an ambiguous point of a treaty or covenant, interpret it favorably to a political or policy goal they support and then extrapolate from there to a legal position without any historical, legal or customary precedence. At this point they present their novel reasoning as ” International Law” as if it was already an accepted fact rather than – say – the thesis of a crank; the ignorance of the media and the public are counted on here to foster this smoke and mirrors con game.

    IL professors of course realize this full well but quietly view these antics are salutory because they inflate the relative importance and standing of IL vs. positive national law rooted in state sovereignty. It also inflates the importance of IL experts as a class )

  2. Heh. Exercise caution.

    Those were valuable questions. And the answer to both questions is ” Yes” – though it is also correct to say that IL is an established body of precedents nominally recognized by all nation-states.

    (Weeramanty, incidently, advocates IL moving closer to the Islamic jurisprudence model)

    Appearances and realities however are not the ame.

  3. Mark,

    “(Weeramanty, incidently, advocates IL moving closer to the Islamic jurisprudence model)”

    Could you explain?

    From the “seminar” notes and what I've gathered, IL already seems pretty “Islamic” — precedents + decisions by “real” courts create IL, very jurisprudence based, “legislation” barely exists, etc.

    The very first day we discussed “legislation without a legislature,” which describes a system of pure common law interpreting received wisdom (that is, a Sharia court) very well.

  4. Sounds like the Big cheese admires Weeramanty ( or both draw from the same source).

    Yes, what IL activists would like to establish as a legitimate authority is effectively a ” Transnational Progressive Ulema” where IL scholars and certain NGO and international bodies collectively float above nation-state sovereigns and hand down rulings much they way Ayatollah Sistani or Sunni scholars issue fatwas.

    The undemocratic, elitist and specious nature of this scheme hardly needs my emphasis. It also has no basis in current IL which flows from customary law interpreted by sovereigns and covenants contracted by said sovereigns.

  5. Mark,

    Good poin on the Transnational Progressive Ulema. Big Cheese is skeptical of the role of lawyers, and has criticized Department of Justice lawyers for being too pro-American when they right memos and briefs. “Ethical attorneys, to the extent they are any, try to interpret the law, not just defend their client”

    Big Cheese's attorneys seem more like mini-mullahs than lawyers in the American sense. So Big Cheese's IL has the worst parts of our law (the ponderous attorney-appeal system) and the worst parts of Islamic law (difficulty in defending oneself, because one's lawyers are really working for the Court).

    I have to give Big Cheese credit, though — he talks about IGO courts but never NGO courts. I'll have to ask him about that…

    I have more trust in the humanity of Ali al-Sistani than the IGO courts. But I'd taking living in a free country over either.

  6. ” I have to give Big Cheese credit, though — he talks about IGO courts but never NGO courts”

    That's because the former derive their authority from contracted covenants and the second, while adhering to the same general judicial philosophy, have an authority that rests only on the assertions of the participants and a very tenuous appeal to the tradition of natural law.

    Cicero and Locke however, would be dubious.

  7. Ha!

    I'll give your BC this – he's smarter than a box of rocks so pinning him down without enraging him will require that you use language in – well- a lawyerly fashion. Is he formerly associated with U. of I. ( my state) law school by chance ?

    Some scholars when looking at ideological movements have written about the use of ” in-depth” language or what is more commonly ( and somewhat incorrectly) called ” code words”. The cant runs comprehensively on two-tracks, one of superficial meaning that is less threatening to a lay audience and a deeper track for activists who understand implicitly the shaded meanings and the depth to which they are to be taken and when.

    Transnational Progressivism in IL has a lot of that going on, IMHO.

  8. Hmm…

    A decisive intellectual battle would be an attack on his schwerpunkt by my nebenpunkt — definitely a bad idea. Better to act like a river, flowing to the easy lowlands from the perilous mountains…

    Graduation is a battle of years, not weeks: think SysAdmin, not Leviathan. Instead, a subversion attack, viewing him as an instrumental resource towards my “happy ending” of a thesis on early Christianity.. that would be a real future worth creating!

    (ok, enough of the bs… 🙂 )

    No UI for BC, but a nice CV.

    (Ah, acronyms… 🙂 )

    I didn't think of the in-depth language angle.. thanks! I thought of multi-track social cognition already (say, the early Christians and Romans conflicting over whether or not cruficition was positive or negative reinforcement), but not by the same side. Probably would relate to “keywords” or “chunking” in the educational psychology class (, but with the narrative used to compress information also having meaning of its own.


    I love the blogosphere!!!

  9. Update: The name is “John Yoo,” not “John Yew.”

    He also has a new book out. The description:

    Yoo, John The Powers of War and Peace: The Constitution and Foreign Affairs after 9/11. 378 p. 6 x 9 2005

    Cloth $29.00 0-226-96031-5 Fall 2005
    Since the September 11 attacks on the United States, the Bush administration has come under fire for its methods of combating terrorism. Waging war against al Qaeda has proven to be a legal quagmire, with critics claiming that the administration's response in Afghanistan and Iraq is unconstitutional. The war on terror—and, in a larger sense, the administration's decision to withdraw from the ABM Treaty and the Kyoto accords—has many wondering whether the constitutional framework for making foreign affairs decisions has been discarded by the present administration.

    John Yoo, formerly a lawyer in the Department of Justice, here makes the case for a completely new approach to understanding what the Constitution says about foreign affairs, particularly the powers of war and peace. Looking to American history, Yoo points out that from Truman and Korea to Clinton's intervention in Kosovo, American presidents have had to act decisively on the world stage without a declaration of war. They are able to do so, Yoo argues, because the Constitution grants the president, Congress, and the courts very different powers, requiring them to negotiate the country's foreign policy. Yoo roots his controversial analysis in a brilliant reconstruction of the original understanding of the foreign affairs power and supplements it with arguments based on constitutional text, structure, and history.

    Accessibly blending historical arguments with current policy debates, The Powers of War and Peace will no doubt be hotly debated. And while the questions it addresses are as old and fundamental as the Constitution itself, America's response to the September 11 attacks has renewed them with even greater force and urgency.

    1. Introduction
    2. The Eighteenth-Century Anglo-American Constitution and Foreign Affairs
    3. Foreign Affairs and the Prelude to the Constitution
    4. Writing and Ratifying a Foreign Affairs Constitution
    5. War Powers for a New World
    6. International Politics as Law? Interpreting and Ending Treaties
    7. Treaties and the Legislative Power
    8. Laws as Treaties? Statutes as International Agreements
    9. The Constitution and the Multilateral Future

    From the University of Chicago Press

    I can't imagine that Big Cheese likes it…

  10. I heard Yoo on NPR last night. My impression is that he is simply a nazi. “Legally Piggaly” flatulance was all I heard from this guy. I could go in depth with more sophistication, but I don't think he deserves it. I think he should be made fun of and shunned.

  11. Willy,

    I was unaware that Mr. Yoo was a white supremacist with a particular fondness for Germany. Indeed, alemanophilia is in short supply in the present Administration, as seen in lack of American support for their UNSC bid (

    That said, “Legally Piggaly” flatulance” might be quite the way to describe so called “international law,” but I don't see the terms' relevence to actual US policy.

  12. In using a small n, for nazi, I was using it in the same way as using a small f, for fascist. What I meant by nazi, is a statist, a corporatist, an authoritarian, as well as a warmonger and booster for the use of torture. All, merely my own opinions, of course.
    As far as the term, “Legally Pigally”, Buckminster Fuller is the originator of it (Critical Path) and found it quite relevent to US policy on many levels.
    I enjoyed your comments, and am glad to be able to clarify my position in this way.

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