Use of Force and International Community

• Author: by Brigadier General Jask-Luis Ferninder-Flares
• Pages: 01

General FernindebFlares 18 the Commandant of the Spanish Army Judge Advocate General's School. He 1s also the Director of the Center for Studies of Humanitarian International Law, of the Spanish Red Crass and a member of the Instituto de Diritto Humamtario (Institute of Hu. man Rights), San Rema. Italy He serves as a member of the Center for National Defense Studies, which submits studies on defense matters to the Spanish government His academic positions Include: Proferaor of Public and Private Internatmnal Lau, University of Spain, Assistant Dean of the International Studies Society, Member of the Aeronautic, Space and Commercial Aviation Law Institute; Member of the Interna. tionai Law Assomatian; Member of the International Law Institute of the Salvador University (Argentina): and Member of the Argentine Association of International Law. He 1s the author of seven texts on in. ternational lam and more than twenty articles on public and private international law mue8 in various legal publications

Follouing IS the text of an address oven by General Fernhndez-Flores to members of the US

Army Reserve International Law Teams, at The

Judge Advocate Generals School on 26 June 1985, a8 part of their Judge Advocate Triennial Traimng.

My heart IS filled with everlasting gratitude. To be m this School is B

delight for my spirit and an honor for me and my Army I thank the ArmedForces of the United States for this opportunity.

I shall present my own thoughts about the relationship between the u6e of force and the international commumty.

I. INTRODUCTION

In order to explore the use of force m international relations and the nay in which force 1s used m those relations, one must chiefly consider the international order. particularly the state of the mernanonal corn. munity at each given time of history.

The state of the international commumty during each period has led to a different notion of war and of the use of farce in general. Almost until present times, was and the permissibility of war. although with various restrictions, has been the consequence of the exmtence of an inorganic internatianal commumty in which the subjects of the international order-the states-had to resort to force in certain c a ~ e ~ in their relations with others There was a lack of an organized mternational tom.

munity with central bodies carrying with them B system of collective se. cwity. The lack of this system of collective security meant the existence of a system of indiiidual security. 80 to speak Each state had to mort to war as its only means ai defense m extreme cases. Thus the mdiwdual recourse to war was the result of the lack of a system of collective sewn. CY

In our time. houei-er. that setup has been someuhat reversed. at least m theory The international community has been organizing itself. and rhe formation of central bodies. though aith very relative power, has had tu0 consequences The first 1s that the individual recourse to war or to the use oi force has tended to he abolished as being mconsment with the new international order, and the second E that this mechanism was replaced for obvious reasons h) a system of collectke security In ab. stract terms, we could sa) that rhe states no longer find It necessary to resort to war individually because there 1s a system of collective security which enables them to attain the same goals-honest. open goals. of course-Bhich each state indiiidually sets for itself

There are two large epochs in the history of international 18% insofar as our suhjecr 1s concerned The first epoch includes the entire period preceding our own time in which an inorganic international community had a system of indivtdual security and consequently the international suhlects-the states-could mdiwdually make use of force The fact that this individual use of force iias more or less restricted in no way affects this general statement. The second epoch covers present times and 1% onem which a relatively organized international community has a system af collective security and. consequently, the mdnidual use of force by the international subjects E prohibited as a general rule

In other words. we could say chat an inorganic international communit) 1s consistent with the permiasihilitg of war and aith the individual use of force. ahile an organized mternanonal community must hegin by prohibiting the individual reco~rie to force and replacing I t b) a system of collective security. In the first case, the aecunty of each state depends upon Lts own indiridual force. and m the second case. the secunt) of each state depends upon the efficiency of the system of collective SBCWI. t?

11. HISTORY-FIRST EPOCH

The Idea of prohibmng or restricting uar or the use of force is a rela. t d y modern one I" Its present-da)- formulation But the placing of cer-tam restrictiana on war 1s something that dates as far back as the adient of Christianity2

19861 FORCE & INTZ COMMUNITY

Among the Oriental peoples, the Jews, the Greeks, and the Romans, the notion of war does not appear to be subject to any restrictions what. soever. A certain concept of "holy war'' made Its appearance among the Jews in Deuteronomy, and that concept was later adopted by Islam; but such references are unimportant for our purposes. Neither did...