web analytics
April 21, 2015 / 2 Iyar, 5775
At a Glance
InDepth
Sponsored Post


Home » InDepth » Op-Eds »

The Law of Use of Force: the US or the UN?

Can interested state[s] intervene militarily to stop heinous crimes without the Security Council’s authorization?
battlefield attornies

It was late afternoon Tuesday the 3rd of September and the US Senate draft resolution for approval of the US use of military forces is in the making overnight after affirmatively receiving President Barack Obama’s request to the Syrian government for the alleged use of chemical weapons in the past few weeks. Citing AP, Al-Jazeera stated on its website that, the US Foreign Relations Committee’s draft resolution contains the measure that would set a time limit of 60 days and leaves discretion to the president to extend the measure for 30 more days with congressional approval. The measure would also bar American ground troops from combat operations and set a deadline for any action. This time, the American bi-partisan political folks did not waste any time to agree on and back up the President’s call for military intervention in Syria. Interestingly enough, the status quo reinvigorates and bolsters the decade old controversial issue of “unilateral humanitarian intervention” [whether or not it has become a customary international rule of legitimate grounds of use or threat of force]. It also remains delicate situation and slightly exhibits a perturbed scenario that the unilateral and unauthorized use of military force by the US would totally dwindle the already “mushy” role of the United Nations. This is more concerning for the future of common humanity.

A Quick Brief on “The Law of Inter-State Use of Force”

United Nation Charter is the starting point of any legal discussion of the use of military force by one state against the other. Having proscribed/prohibited, in principle, the use or threat of military force under article 2(4), the UN Charter lets only two exceptional/legitimate grounds of use of military force on international scale. First, the inherent existence of the right of “self-defense” as provided under article 51 of the UN Charter. This ground non-applicable to the United States and preposterous to establish the nexus between the Syrian Chemical weapon and the necessity element of the right of self-defense. One has to build a case where there is an instant, overwhelming and eminent threat [the 19th Century formulation of customary international law in invoking the right of self-defense] posed in the unlikely event of Assad’s use of Chemical warfare against the United States. Therefore, this ground is too far removed from reality to be supplicated by any strike against Syria.

Second, international use of military force is legitimate if and only if the UN Security Council (UN SC) of the United Nations [the most powerful among the six organs of the UN] without vetoing by any permanent member authorizes force, through an appropriate resolution under Chapter 7 of the UN Charter, in order to restore “international peace and security” [pursuant to article 39-43 of the Charter]. This second ground is popularly termed as “the UN Enforcement Action”.

The soup-to-nuts of the international law of use of force, therefore, narrowly formulates and enjoys only two exceptional grounds of legitimacy: “self-defense” and “UN SC authorization”. Nowhere can one find any other legitimate third ground [other than the two briefly mentioned above] in the theoretical discourse of the subject of law of use of force in the United Nations Charter.

“The Tumorous Debate of Humanitarian Intervention”: Can it be the third legitimate ground to use force?

Can interested state[s] intervene militarily to stop heinous crimes (say for example, crime against humanity, war crime, genocide or any other comparable atrocity) without the Security Council’s authorization? This question [easy to verbalize but notoriously difficult to answer] had been hanging around as old as the United Nations itself. Humanitarian intervention, as posed in the question above can be defined as the use of military force by one state against another that is somehow brutalizing or killing its own people. The fate of “humanitarian intervention” as the third possible ground for use of force remains the hot button topic in international law of use of force. The recent decades saw a practical challenge posed to the doctrine of humanitarian intervention. For example, the 1998 NATO bombing of Kosovo without the authorization of UN Security Council had drawn solid criticism from many countries. The fathomable approach to the subject requires an intellectual reconnoitering of the past practices of states in order to evaluate the degree to which the “humanitarian intervention” is being solidified in the process of achieving the status of customary international law. I am of the opinion that unilateral humanitarian intervention can attain legitimacy and be relied on to use force only upon the fulfillment of one basic condition, i.e., “if the Security Council’s decision making process becomes insolvent.”

About the Author: Henok G. Gabisa is a JSD/PhD Candidate and International Law Fellow and Researcher at Washington and Lee University School of Law in Lexington, Virginia.


If you don't see your comment after publishing it, refresh the page.

Our comments section is intended for meaningful responses and debates in a civilized manner. We ask that you respect the fact that we are a religious Jewish website and avoid inappropriate language at all cost.

If you promote any foreign religions, gods or messiahs, lies about Israel, anti-Semitism, or advocate violence (except against terrorists), your permission to comment may be revoked.

4 Responses to “The Law of Use of Force: the US or the UN?”

  1. Moshe Z. Matitya says:

    I saw the headline and thought, “Cool!”
    Then I noticed that it says “Use of Force”, not “Use of The Force”… :-(

  2. I saw the headline and thought, “Cool!”

    Then I noticed that it says “Use of Force”, not “Use of The Force”… :-(

  3. Alan Kardon says:

    Bottom line is- Barack Hussein does whatever he wants to do. So why are we part of the United Nations? Think about all of the money we save that can be put to better use.

  4. Its complicated Issu but I don't like Islamic people in any state.

Comments are closed.

Current Top Story
Rav Aharon Lichtenstein
My Encounter with Rav Lichtenstein
Latest Indepth Stories
Rav Aharon Lichtenstein

What was supposed to have been a 15 minute interview, turned into an intense learning session and intellectual battle, the likes of which I had never experienced in my entire life.

Rabbi Lichtenstein (z"l).

Rav Lichtenstein did not learn Tanaim, Amoraim, Rishonim and Achronim, rather he learned with them

Israel Supreme Court at Night

How can NIF claim they don’t support BDS when they try to repeal laws forbidding boycotts of Israel?

Rabbi Lichtenstein (z"l).

“Rav Lichtenstein’s vision and inspiration served to guide the development of Tzohar.”

As Holocaust survivors decline rapidly attacks on the veracity of the Holocaust rapidly escalates

The Constitution created history’s most powerful legislature & inherent foreign policy power battle

The S-300 poses a major problem; Israel will have to get creative as to if, when & where it strikes

“The resentment towards us (Jews/Israelis) was really intense. They clearly hate Zionism & Zionists”

Egypt has been more effective against Gazan smuggling tunnels than Israel’s military operations

She had many names and was many things to many people, but to me she was just Babineni.

Is ISIS in Gaza? “No, but there are ISIS loyalists here..we pray to God they unite under ISIS’ flag”

Rabbi Portal was that great “inspirer,” changing people for the better, enriching the lives of all

Iran knows Obama, Putin, and the Europeans don’t have a Red Line beyond which they will go to war

There is no way to explain the Holocaust. I know survivors who are not on speaking terms with G-d. I know many who are the opposite. I have no right to go there…

When a whole side of your family perishes, friends become the extended family you do not have.

“We stand with Israel because of its values and its greatness and because its such a wonderful ally”

More Articles from Henok Gabisa
battlefield attornies

Can interested state[s] intervene militarily to stop heinous crimes without the Security Council’s authorization?

Printed from: http://www.jewishpress.com/indepth/opinions/the-law-of-use-of-force-the-us-or-the-un/2013/09/08/

Scan this QR code to visit this page online: