III. Jus Ad Bellum and International Terrorism

• Author: Rein Millerson
• Pages: 75

Legal Regulation of the Use of Force: The Failure of Normative Positivism T he central tenet in international law is the legal regulation of the use of force. The nature, content and effectiveness of this area of international law mirrors, much more clearly than any other branch, the very character of international law. In order to grasp the essence of the current debate in this area of international law it is helpful to have a brief review of the evolution of the proscription on the use of force.

Thucydides' History of the Peloponnesian War demonstrates a complete absence of any legal (or even legal-moral-religious) restriction on the recourse to war. As Thucydides writes, 'the Athenians and the Peloponnesians began the war after the thirty-year truce' since 'Sparta was forced into it because of her apprehensions over the growing power of Athens.'2 This sounds somewhat familiar and contemporary as there was a violation of the balance of power that caused Sparta to ally with smaller Greek city-states-forming the Peloponnesian League to counter militarily the Delian League headed by 1. Professor of International Law, King's College, London; Institut de droit International, Membre.

2. THUCYDIDES, THE PELOPONNESIAN WAR 11-12 (W. W. Norton & Company, 1998).

   Athens. But differently from today's or even from yesterday's world, Greek city-states did not need to justify their recourse to arms. Athenians believed it to be 'an eternal law that the strong can rule the weak' as 'justice never kept anyone who was handed the chance to get something by force from getting more.'3 Their ambassadors explained to the Melians that 'those who have power use it, while the weak make compromises... Given what we believe about the gods and know about men, we think that both are always forced to dominate everyone they can. We didn't lay down this law, it was there-and we weren't first to make use of it.'4 '[E]ach of us must exercise what power he really thinks he can.'5

   Starting from Saint Augustine, through Saint Thomas Aquinas and other Christian theologians, various concepts of just wars developed. War had to be declared and waged by proper authorities, had to have just cause and just intention. What causes were just was, of course, open to debate. During this period, natural law doctrines in international relations dominated and were indistinguishable from religious and moral reasoning. This period continued beyond the times of Hugo Grotius. Legal limits on the use of force came from the interpretation of religious texts or Roman private law and not from what states or other political entities actually did. If international law at all governed (i.e., limited or justified) the use of armed force it was because its arguments were drawn from and supported by religious texts and their interpretation.

   Christianity was not the only religion that had something to say about the use of force, as interpreters of the Old Testament and the Koran, similarly, tried to distinguish between just and unjust causes of resorting to arms. There are some striking similarities, though no doubt there are significant differences too, between the main monotheistic religions in that respect. For example, the Spanish Dominican professor, Franciscus Victoria, explained that, as the Indians in America, though not Christians, were nevertheless humans and therefore endowed with reason, it was not possible to use force against them without just cause and 'difference in religion is not a cause of just war.'6 At the same time, 'the Indians had violated the fundamental right of the Spaniards to travel freely among them, to carry on trade and to propagate Christianity.'7 Hence, though force could not be used to proselytise, it could be 3. Id. at 30.

4. Id. at 229.

5. Id. at 227.

6. YORAM DINSTEIN, WAR, 'AGGRESSION AND SELF-DEFENSE 61-62 (3rd ed. 2001) [hereinafter DINSTEIN].

7. Id. at 61.

   used when proselytes refused to be proselytised. In 1948, Sheikh Shaltut of AlAzhar University in Cairo justified the Muslim conquests of Byzantine and Persia on the grounds of the response by the Byzantines and Persians to communications calling them to convert to Islam. He wrote that 'Moslems only attacked people when they showed a spirit of hostility, opposition and resistance against the mission and a contempt for it.'8 As Ann Elisabeth Mayer comments, 'here religious reasons, resistance to converting to Islam and contempt for Islamic missionaries, apparently justify recourse to military force-at least where the states attacked are perceived to be a danger to Muslims or the spread of Islam.'9 Here too, only those who refused to adhere to the true faith were killed and their lands conquered.

   After Emerich de Vattel, positivism gradually started to prevail in international law and the differentiation between just and unjust wars based on religious laws or the laws of nature (the human nature or the nature of the state) lost its meaning. Although this was not a return to the naked power politics of Ancient Greece it was only thinly veiled power politics where any offense, real or perceived, may have been good enough to justify the use of military force.

   In such a situation the Caroline incident and the subsequent exchange of letters between US Secretary of State Daniel Webster and the British Minister to Washington was more an aberration than a pattern of behavior.10 As will be discussed below, the Caroline formula holds interest for explaining some of today's conflicts but in the middle of the 19th century, it was at best opinio juris of two states that was not confirmed by any practice. Recall that in 1914 during the Vera Cruz incident, triggered by the arrest by Mexican authorities of several crewmembers from the USS Dolphin, the United States used military force against Mexico when Mexican authorities refused to honor the US flag with a 21 gun salute as an official apology.11 Similarly, Great Britain and Germany used gunboats to force Venezuela to pay its debts to nationals of these states.12

   Positivism, that is the resort to the use of force without limits resulted in a system where any offense against a state or its honor could be responded to 8. Sheik Shaltut, Al-Azhar University Cairo, Egypt, quoted in ANN ELISABETH MAYER, WAR AND PEACE IN THE ISLAMIC TRADITION AND INTERNATIONAL LAW, IN JUST WAR AND JIHAD. HISTORICAL AND THEORETICAL PERSPECTIVES ON WAR AND PEACE IN WESTERN AND ISLAMIC TRADITION 204 (. Kelsay and J. T. Johnson eds., 1991).

9. Id. at 205.

10. See R. Y. Jennings, The Caroline and McLeod Cases, 32 AM. J. INT'L L. 82 (1938).

11. IAN BROWNLIE, INTERNATIONAL LAW AND THE USE OF FORCE BY STATES, 36-37 (1963) [hereinafter BROWNLIE].

12. Id. at 35.

    with force. At the beginning of the 20th century, this positivism, became diluted by normativism. International law regulating the use of force evolved not to what states did to each other but what they had agreed they should or should not do (normative positivism). Using customary law terminology, it was not so much state practice as their opinio juris that mattered. Here, the term opinio juris is used in a wider sense and it includes authoritative statements by states as to what international law is, including those laws enshrined in international treaties.13

    This has been a controversial development. It may be said that there has always been an immense gap between words and deeds, but words as well as the notions and ideas expressed in those words, when repeated long enough and desired by many, often change reality. Though this gap may be still immense, the world's views on the use of force is not what it was hundreds of years ago.

    A learned few may change laws, while laws may also change the views of many and even force those whose views remain unchanged to act within the law.

    Here the relationship between law and behavior is a kind of chicken-and-egg question as it is impossible to say whether European neighbors (e.g., the United Kingdom, Germany and France) who warred against each other for ages do not do it now because they finally concluded that they needed effective norms and institutions to protect their citizens from the scourges of war.

    Alternatively, it may well be that Europe remains at peace because of these very norms and institutions. Obviously, the change in viewpoint and the creation of norms and institutions occurred simultaneously.

    Europe is not the only, though the most prominent place (having also been one of the bloodiest and having become the most peaceful), where such changes have taken place. The American continent also has moved in the same direction.

    Beginning in the 20th century, the development of the League of Nations Covenant, the Kellogg-Briand Pact of 1928, the UN Charter and other important international treaties, worked to severely restrict use of military force in relations between states. Unfortunately, this normative system has been violated so many times, often with impunity, that it is hardly possible to call it an effective (even relatively effective) legal regime. This system does, however, reflect the world's desire to avoid the repetition of the two world wars that brought untold sorrow to Europe and mankind. This system now shapes the mentality of many people and therefore conditions their attitude towards the use of force amongst states.

13. Whether a treaty that is formally in force but that is not implemented in practice is law or not is another issue. The same question may be asked about opinio juris not confirmed by practice.

    The current UN Charter paradigm concerning the use of force can be called normative positivism since it is based on the consent of states and not upon what states (or at least most of them) do in practice. It is normative since it is not premised on the actual practice of states. It is positivist since it does not make distinctions between just, unjust, more justified, and less justified causes for the use of force.

    The Charter paradigm sees the use...