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The Use Of Force Notes

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This is an extract of our The Use Of Force Notes document, which we sell as part of our Public International Law Notes collection written by the top tier of Oxford students.

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The use of force Some regard it as a curious if not paradoxical idea that IL should seek to regulate war and the use of force

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It appears almost perverse to use the instrumentality of the law in an attempt to regulate the precise manner of violent killing and destruction of property

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2 angles of criticism o Killing/property destruction is wrong - should not be lent the colour of legitimacy by accommodating them within the law o When the very existence of institutions and moral principles of fundamental importance is under grave threat, they must be defended, and whatever is necessary for their defence is OK.
? Defence secretary Rumsfeld's observation that "stuff happens" in response to complaints of looting during the 2003 invasion of Iraq.

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Both criticisms have some force; but both are fundamentally flawed as criticisms of the role that has been given to IL in the context of the use of force

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Whatever one might think about the Vietnam war in the 1960s and 70s, or the intervention in Kosovo in 1999 or the invasion of Iraq in 2003, it cannot be said that they were, taken as a whole, wanton acts of violence. o Those uses of force were all launched to safeguard some value that was thought sufficiently important to warrant asking or ordering people to die and kill for.

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The conflicts may regarded as fundamentally immoral and illegal, or as having involved disproportionate force, or in some other way defective, but they were not unprincipled.

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If force is used to secure or advance values and principles that force must itself be consistent with those principles. o No sense to seek to preserve the civilised values of human dignity and human right by the use of torture and gratuitous and indiscriminate suffering

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Whatever the moral justification for the use of force may be, that moral justification will - if it is to be coherent - entail limitations upon the circumstances in which force may be used and the manner in which it is used o Could this provide the basis for rules of going to war?
o Is this logic or natural law?
o 1863 Instructions for the government of armies of the us in the field:
? "MEN who takes up arms against one another is public war do not cease on this account to be moral beings responsible to one another and to God"

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"Just war" - Deuteronomy chapter 20, mosaic rules of war.

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The ius in bello and ius ad bellum developed separately from one another as legal concepts, although the 2 bodies of rules are closely related and there is a very long history of moral analysis of the rightness to resort to war, epitomized by the "just war" tradition.

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Only in the 20th century that there arose legal constraints upon the rights of states to have resort to war, although for many centuries there had been recognition of the need for a moral justification for the waging of war.

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Until beginning of 20th century, dictum of Clausewitz was "As accurate as it was elegant"

o "war is the continuation of politics by other means"

But after horrors of ww1 and ww2, there was a realization that the war represented a monumental failure of policy, diplomacy and military strategy o Note Wilson's "14 points" speech: "US' goal in the war was that the world be made fit and safe to live in" League of nations - covenant was the first serious attempt to place general legal constraints upon the resort to war o In 19th century, there had been bilateral treaties in which states had declared their "eternal friendship" e.g. Costa-Rica /Nicaragua treaty in 1868 Art 12 of covenant: o "members of the league...will submit the matter either to arbitration or judicial settlement or to enquiry by the council...agreement not to resort to war until 3 months after the award" o If a state failed to comply with this, other mss were committed to sever all trade or financial relations with it.

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