The Use of Force under International Law

Lawyerized States in a Legalized World

Fernando Nuñez-Mietz

• Publisher: Routledge
• Year: 2018
• ISBN:
  9780429855641
• Edition: 1
• Topic: Politics & International Relations
• Subtopic: Politics
• Index: Politics & International Relations

The international system is becoming increasingly legalized, with legal arguments and legal advisors playing an increasingly important part in the state policymaking process. Presenting a practice-oriented theory of compliance with international law, this book shows how international law affects the behavior of increasingly lawyerized states in an ever more legalized world.

By highlighting the legalization of international legitimation and the lawyerization of policymaking as the new engines of compliance, the book's analytical framework rethinks the relationship between state behavior and international law, and provides an empirical focus on security through the study of NATO's military intervention in Yugoslavia in 1999 and the changes in the US detention and interrogation programs in the "War on Terror." Relying on primary sources, the author demonstrates the effect of lawyerized decision making on international law compliance, reconstructing the strategies of (de-)legitimation used to show that international law is the hegemonic frame of reference in interstate debates.

This book will be of interest to scholars of international relations, government studies, foreign service studies and lawyers employed in government work.

1 The legalization of international legitimacy and the lawyerization of the state

The compliance theory developed in the following chapter is premised on the transformation of two state practices – namely, the legitimation of state actions in the international arena, and the formulation and implementation of policies within the state. As legitimation became more legalized and decision making more lawyerized, these two state practices became the new engines of state compliance with international law. The goal of this chapter is to provide some evidence of these two transformations.

The legalization of international legitimacy

The legitimation of state actions does not occur in a social vacuum; it is a practice embedded in a socially constructed legitimacy system. A legitimacy system constitutes the normative structure that determines the relevant legitimacy discourses (for a given course of action) as well as the distribution of authoritativeness amongst them. For instance, the legitimacy system pertaining to the use of military force is constituted by three primary legitimacy discourses: the moral, the political, and the legal discourses. Each of these discourses implies a different sense in which the use of force can be legitimate. The use of force can be legitimate because it enacts a moral imperative (moral discourse), because it pursues a desirable political goal (political discourse), or because it is compatible with international law (legal discourse).

Let us consider NATO’s military intervention in Yugoslavia in 1999. How was the intervention legitimized? In their attempt to legitimize the use of force against Yugoslavia in the United Nations Security Council (UNSC), state representatives invoked the three main legitimacy discourses that could validate a military intervention at the end of the twentieth century: the morality of the use of force, its political expediency, and its compatibility with international law. Similarly, those trying to delegitimize the intervention would portray it as immoral, politically imprudent, or unlawful. In the 16 recorded UNSC meetings in which states discussed the use of force in Kosovo, two moral arguments were made which referred to the positive or negative consequences of the intervention in terms of preventing or causing human suffering, respectively. As for political expediency, seven arguments can be identified, the most frequently made being that the intervention would undermine regional security and that all peaceful means of preserving international security in the region had been exhausted and proven inefficacious.¹ Ten different legal arguments were made on both sides of the debate, the most common of which referred to the intervention’s illegality in light of the UN Charter’s general ban on the use of force (Article 2.4) and the principle of the peaceful settlement of disputes (Article 2.3), as well as the need to put an end to systematic violations of international law. These are all the arguments identified in these debates:

(+) Legitimizing arguments:

Legal arguments: The Kosovo intervention as compatible with international law.

a The use of force is necessary to put an end to a systematic violation of international humanitarian law, human rights law, or UNSC resolutions.

Example: “The actions of the Federal Republic of Yugoslavia also violate its commitments under the Helsinki Final Act, as well as its obligations under the international law of human rights.”²

b The use of force is limited to the implementation of UNSC resolutions.

Example: “The NATO action […] follows directly from resolution 1203 (1998), in conjunction with the flagrant non-compliance on the part of the Federal Republic of Yugoslavia. Given its complex background, we cannot allow it to be described as unilateral use of force.”³

c The use of force is compatible with the principle of the pacific settlement of disputes as peaceful means have been exhausted.

Example: “[…] we in the Gambia are very much attached to the sacrosanct principle of the peaceful settlement of disputes, as enshrined in the Charter of the United Nations. Throughout the past year, the international community has deployed a great deal of effort in order to find a peaceful settlement to the question concerning Kosovo.”⁴

d The use force is a legitimate exception within the UN Charter because of the urgency of the situation.

Example: “In these circumstances, and as an exceptional measure on grounds of overwhelming humanitarian necessity, military intervention is legally justifiable.”⁵

e The use of force was done in compliance with the international legal regulations on the use of force.

Example: “The draft resolution before us today alleges that NATO is acting in violation of the United Nations Charter. This turns the truth on its head. The United Nations Charter does not sanction armed assaults upon ethnic groups, or imply that the international community should turn a blind eye to a growing humanitarian disaster.”⁶

f The use of force was not authorized by the UNSC only due to the misuse of the veto.

Example: “Is the Security Council now to be used as a marginalized institution to actually block or criticize the only viable response in order to bring peace and to stop vast human rights abuses? Remember, these abuses are themselves the most serious violations of the United Nations Charter.”⁷

Political arguments: The Kosovo intervention as politically expedient or desirable.

g The use of force is necessary to preserve the stability and security of the region.

Example: “The continuing offensive by the Federal Republic of Yugoslavia is generating refugees and creating pressures on neighbouring countries, threatening the stability of the region.”⁸

h Military force was the only means left in the face of Yugoslavia’s intransigence.

Example: “[…] serious efforts at finding a peaceful resolution to the conflict in Kosovo have failed. The Yugoslav leadership bears full responsibility for the failure of those efforts.”⁹

Moral arguments: The Kosovo intervention as upholding moral imperatives.

i The use of force was necessary to put an end to a humanitarian catastrophe.

Example: “It is imperative that the international community take quick measures to avoid humanitarian suffering and widespread destruction, which could exceed that of the 1998 offensive.”¹⁰

(–) Delegitimizing arguments:

Legal arguments: The Kosovo intervention as incompatible with international law.

j The use of force is an act of aggression contrary to the UN Charter and other fundamental norms of international law.

Example: “The aggressive military action unleashed by NATO against a sovereign State without the authorization and in circumvention of the Security Council is […] a gross violation of the United Nations Charter and other basic norms of international law. Key provisions of the Charter are being violated, in particular Article 2, paragraph 4, which requires all Members of the United Nations to refrain from the threat or use of force in their international relations, including against the territorial integrity or political independence of any State; Article 24, which entrusts the Security Council with the primary responsibility for the maintenance of international peace and security; Article 53, on the inadmissibility of any enforcement action under regional arrangements or by regional agencies without the authorization of the Security Council; as well as others.”¹¹

k The use of force is a violation of Yugoslavia’s legally protected sovereignty rights.

Example: “We expect and request the Security Council to take immediate action strongly to condemn and stop the aggression against the Federal Republic of Yugoslavia and to protect its sovereignty and territorial integrity. Until this happens, my country has no alternative but to defend its sovereignty and territorial integrity by all means at its disposal, in accordance with Article 51 of the Charter of the United Nations.”¹²

l The use of force did not comply with the principle of the peaceful settlement of disputes.

Example: “In numerous cases of conflict situations it has been the view of the Security Council – and rightly so – that military action is not the solution, but rather that peaceful means should be resorted to. This principle has been reaffirmed time and time again – and even recently, during the open meeting that the Council convened on Friday, 19 March 1999. It is a principle that we believe should not be used selectively.”¹³

m The use of force undermines the rule of law in international relations.

Example: “A dangerous precedent has been created regarding the policy of diktat and force, and the whole of the international rule of law has been threatened.”¹⁴

Political arguments: The Kosovo intervention as politically unwise or undesirable.

n The use of force undermines the prospects of settling the Kosovo situation and of restoring international peace and security in the Balkans.

Example: “By attacking Yugoslavia, NATO has not solved the alleged humanitarian catastrophe in Kosovo and Metohija, which they so maliciously presented as a casus belli; on the contrary, they themselves are creating a catastrophe of enormous proportions for all citizens of Yugoslavia and for peace and stability in the region and beyond.”¹⁵

o The use of force undermines the multipolar distribution of power.

Example: “the Russian Government strongly proclaimed its categorical rejection of the use of force […] and issued repeated warnings about the long-term harmful consequences of this action […] for the stability of the entire modern multi-polar system of international relations.”¹⁶

p The use of force is illegitimate because diplomatic channels were not exhausted.

Example: “NATO’s decision to use military force is particularly unacceptable from any point of view because the potential of political and diplomatic methods to yield a settlement in Kosovo has certainly not been exhausted.”¹⁷

q The use of force encourages terrorism in Yugoslavia.

Example: “By bombing massively and indiscriminately the cities and towns of the Federal Republic of Yugoslavia, NATO has become the air force and mercenary of the terrorist Kosovo Liberation Army (KLA).”¹⁸

r The use of force is an infringement of Yugoslavia’s independence and of its right to decide on its domestic affairs.

Example: “Domestic political problems have to be settled peacefully by the parties concerned through consultation and dialogue. Foreign military intervention can only worsen matters. It will solve nothing.”¹⁹

Moral arguments: The Kosovo intervention as immoral.

s The use of force worsens the humanitarian crisis and causes further human suffering.

Example: “[…] by focusing its raids exclusively on civilian targets, NATO has caused untold suffering to the entire population of the Federal Republic of Yugoslavia.”²⁰

To grasp the relative appeal to each discursive frame I made three quantitative measurements:

• Frequency: The number of times each argument was made during discussions;

• Extension: The number of words used to develop each argument; and

• Prominence: A combination of the previous two measures. The prominence of argument z (P_z) is calculated as the average between the argument’s relative frequency (F_z/∑F_i) and its relative extension (E_z/∑E_i), such that $=\frac{\frac{F_z}{\sum F_i}+\frac{E_z}{\sum E_i}}{2}$.

Table 1.1 shows the frequency, extension and prominence of the 19 arguments used to legitimize and de-legitimize the Kosovo intervention. When grouped by the type of legitimacy discourse invoked, moral, political and legal arguments yielded a prominence of 19 percent, 26 percent and 55 percent, respectively. The international legal framework was therefore twice as prominent in UNSC discussions as the second most prominent discourse. In Chapter 3 I provide a more qualitative analysis of the legitimation of the Kosovo intervention, confirming that international law was the dominant discursive frame while moral and political argumentation was rather subsidiary.

Taking the intervention in Kosovo as a landmark for exploring whether the use of force has become legalized or not, can be contested by arguing that the practice of legitimation in this case was legalized only because inter-state debates took place within the institutional context of the United Nations (UN). International law is the dominant language of the UN and, the argument goes, this discursive frame is prevalent in the legitimation of the Kosovo intervention only because this case was UN-ized. In short, the findings about the legitimation of the Kosovo intervention cannot be generalized to legitimation processes occuring outside the UN. This is a sound point. However, as far as the intergovernmental legitimation of the use of force is concerned, this international practice has been virtually monopolized by the institutional sphere of the UN, ...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• List of illustrations
• Foreword
• Introduction: international law compliance in a legalized world
• 1 The legalization of international legitimacy and the lawyerization of the state
• 2 A practice theory of state compliance with international law
• 3 Legalization and the legitimation of the Kosovo intervention
• 4 Lawyerization and the treatment of detainees in the “War on Terror”
• Conclusion: state practices and the engines of compliance with international law
• Index