Unification of human affairs, to the extent at least of a cessation of
war and a worldwide rule of international law, is no new idea; it can be
traced through many centuries of history. It is found as an acceptable
commonplace in a fragment, De Republica, of Cicero. It has, indeed, appeared
and passed out of the foreground of thought, and reappeared there, again and
H.G. Wells, The Idea Of A League of Nations, Atlantic Monthly, January, 1919.
A Note To The Reader: This interactive text contains hyperlinks both to complete copies of important document found at other sites and to abridged versions of the same document on this site. Those abridged versions are noted after the first link as "abridged." They have been provided for the convenience of the reader interested in substantive versions of treaties but absent information regarding such matters as structure of secretariats and provisions for entry into effect. The text is color coded as follows:
A Note To The Law Of War Student: Particularly relevant sections of underlying case readings are yellow highlighted. The student is, however, expected to at least be familiar with the entire reading. Where the case title is highlighted, as in Yamashita, the student is expected to read carefully the entire case.
A Note to German Students: To facilitate your understanding I have included German language texts of treaties where available. The hyperlink will be identified by the words "German language version."
International security agreements were not a new product of the twentieth century. The Holy Alliance, for example, among most of the European rulers, represented a defense commitment in central and eastern Europe in the early 19th century. The League Of Nations, however, was the first international organization designed to maintain world peace and deter international aggression. It was based on collective security against the "criminal" threat of war. (For extensive documentary information on the League, visit the Northwestern University site beginning in December, 2000). See also, Archives of the League of Nations.
Article 10 of the League
language version) provided:
|The Members of the League undertake to respect and preserve as against external aggression the territorial integrity and existing political independence of all Members of the League. In case of any such aggression or in case of any threat or danger of such aggression the Council shall advise upon the means by which this obligation shall be fulfilled.|
Contrary to popular wisdom the League's history was not one of uniform failure. As a useful web article notes:
|In spite of its handicaps The League of Nations had a number of far-reaching accomplishments. It proved that international administration of small territories was feasible, and the Lytton and Epidemics Commissions illustrated the value of impartial international investigating bodies. In the areas of social and economic cooperation, where the League was most successful, it went beyond the original intention of its Covenant, because it helped to meet specific and real problems of people in their daily lives. The League of Nations went as far and as fast as the great powers would permit.|
In October, 1935 Italy invaded Ethiopia, following a series of threats against that country, and ineffective appeals to the League by the Ethiopian government. In the following months Italian aircraft bombed and gassed Ethiopian troops and civilians. The League imposed sanctions but did not include oil, coal, and rubber; the essential materials of modern warfare. The export of aluminum to Italy was forbidden; it was one of the few metals which Italy produced in sufficient quantities for export. By May, 1936, Ethiopia's troops had been defeated and its cities occupied.
In June, 1936,
Selassie I, the Emperor of Ethiopia appealed to the League of Nations:
In October, 1935, the 52 nations who are listening to me today gave me an assurance that the aggressor would not triumph, that the resources of the Covenant would be employed in order to ensure the reign of right and the failure of violence.
I ask the
fifty-two nations not to forget today the policy upon which they embarked eight months ago, and on faith of which I directed the resistance of my
people against the aggressor whom they had denounced to the world. Despite
the inferiority of my weapons, the complete lack of aircraft, artillery,
munitions, hospital services, my confidence in the League was absolute. I
thought it to be impossible that fifty-two nations, including the most powerful
in the world, should be successfully opposed by a single aggressor. Counting on
the faith due to treaties, I had made no preparation for war, and that is the
case with certain small countries in Europe.
When the danger became more urgent, being aware of my responsibilities towards my people, during the first six months of 1935 I tried to acquire armaments. Many Governments proclaimed an embargo to prevent my doing so, whereas the Italian Government through the Suez Canal, was given all facilities for transporting without cessation and without protest, troops, arms, and munitions.
The British government immediately argued that since the sanctions had failed they should be ended. The sanctions were intended to restrain Italy and to deter it from conquering Abyssinia. Sanctions ended on 15 July 1936. Before the end of the year, all but four of the League's members voted to recognize Italy's annexation of Ethiopia.
|In the view of the Court, under international law in force today - whether customary international law or that of the United Nations system - States do not have a right of 'collective' armed response to acts which do not constitute an 'armed attack'.|
Nicaragua v US, ¶ 211.
Questions To Consider About
Of International Organizations
|8.1.1 In crises involving Italian aggression in Ethiopia, Japanese aggression in China, and German aggression in Austria and Czechoslovakia, the League proved ineffective as a peace keeping body. Examine the League Covenant and compare it with the United Nations Charter. What modifications of the League might have made it a more effective vehicle for enforcement?|
|8.1.2 Following the successful Italian conquest of Ethiopia, the British government argued that sanctions had failed and should be ended. How long should sanctions have lasted? Compare that situation with Iraq between 1991 and 2003.|
|8.1.3 In WWII the United States and the United Kingdom did much of their military planning through an entity called the Combined Joint Chiefs of Staff. The United Nations Charter provides in Article 47 for the establishment of ... "a Military Staff Committee to advise and assist the Security Council on all questions relating to the Security Council's military requirements for the maintenance of international peace and security, the employment and command of forces placed at its disposal, the regulation of armaments, and possible disarmament." That Committee consists of "the Chiefs of Staff of the permanent members of the Security Council or their representatives." How has the Military Staff Committee actually functioned? Hint: There is a movement to revive the Committee. How and why does it need reviving?|
|8.1.4 Chapter VII of the U.N. Charter provides a security role for regional defense organizations. One of those regional organizations is the North Atlantic Treaty Organization (NATO). How does the NATO staff function? Compare that well developed staff organization with other regional alliances.|
|8.1.5 The European Union is planning the creation of a pan-European defense force independent of NATO. Consider the potential conflicts of interest between NATO and the pan-European force regarding base and equipment usage, munitions de guerre, and specialized units. How would you resolve those conflicts?|
|8.1.6 In Nicaragua v US, at ¶ 211 the Court says that "In the view of the Court, under international law in force today - whether customary international law or that of the United Nations system - States do not have a right of 'collective' armed response to acts which do not constitute an 'armed attack'." Compare this statement with the position of the United States regarding Iraqi possession of weapons of mass destruction. Is the U.S. position valid? Does it make a difference if Iraq is in breach of an armistice agreement which halted the fighting in an armed response clearly made to an act of aggression?|
The founders of the United Nations (for additional background information see U.S. Department of State Background Notes) determined that it should not repeat the experience of the League of Nations, which relied solely upon the individual action of Member States to carry out the sanctions. It was therefore decided that each nation should agree in advance to provide forces and facilities upon which the Security Council could call to prevent or suppress any act of aggression or breach of the peace. Those national contingents are to be under the strategic direction of the Military Staff Committee whenever they are called into action by the Security Council.
See, Speech by Herschel V. Johnson, Deputy United States Representative to the United Nations, June 4, 1947.
Under Article 43 of the Charter all members "undertake to make available to the Security Council, on its call and in accordance with a special agreement or agreements, armed forces, assistance, and facilities, including rights of passage, necessary for the purpose of maintaining international peace and security."
The fundamentals of the Military Staff Committee are
enunciated in Article 47 of the Charter:
1. There shall be established a Military Staff Committee to advise and assist the Security Council on questions relating to the Security Council's military requirements for the maintenance of international peace and security, the employment and command of forces placed at its disposal, the regulation of armaments, and possible disarmament.
2. The Military Staff Committee consist of the Chiefs of Staff of the permanent members of the Security Council or their representatives. Any Member of the United Nations not permanently represented on the Committee shall be invited by the Committee to be associated with it when the efficient discharge of the Committee's responsibilities requires the participation of that Member its work.
3. The Military Staff Committee shall be responsible under the Security Council for the strategic direction of any armed forces paced at the disposal of the Security Council. Questions relating to the command of such forces shall be worked out subsequently.
4. The Military Staff Committee, with the authorization of the security Council and after consultation with appropriate regional agencies, may establish sub-committees.
The Military Staff Committee was initially of considerable interest to the Security Council. At its second meeting, the Council adopted without a vote the following Resolution:
|By Article 47 of the
Charter, the United Nations have agreed that there shall be established
a Military Staff Committee to advise and assist the Security Council,
and that the Military Staff Committee shall consist of the Chiefs of
Staff of the permanent members of the Security Council or their
1. The Security Council requests the permanent members of the Security Council to direct their Chiefs of Staff to meet, or to appoint representatives to meet, at London on 1 February 1946;
2. The Security Council directs that the Chiefs of Staff or their representatives, when so assembled, shall constitute the Military Staff Committee referred to above;
3. The Security Council directs the Military Staff Committee thereupon, as its first task, to draw up proposals for its organization (including the appropriate secretarial staff) and procedure, and to submit these proposals to the Security Council.
The Cold War, however, intervened, and Soviet footdragging essentially caused the MSC to be stillborn. See, Jane Boulden, Prometheus Unborn: The History of The Military Staff Committee, 19 Aurora Papers, Canadian Centre For Global Security (1993), but see, Report by the Military Staff Committee, Yearbook of the United Nations, 1946-47 at pp. 424 et seq.
been a number of proposals for breathing life into the U.N.'s military
enforcement structure including the creation of a
reaction force under U.N. control. There have been equally
objections to any military empowerment of the U.N, and some
in between. For a nice discussion of the military implications of peace
keeping operations see
UN JIU Report
|It is my view that the role of the Military Staff Committee should be seen in the context of Chapter VII, and not that of the planning or conduct of peace keeping operations|
An Agenda For Peace, Report of the Secretary General, 17 June, 1992 at ¶43.
On November 13, 2000, the Security Council
the Annex to which specifically "undertakes to consider the possibility of
using the Military Staff Committee as one of the means of enhancing the United
Nations peacekeeping capacity." That Resolution also requests regular
military briefings from the Secretariat to report on "key military factors
such as, where appropriate, the chain of command, force structure, unity and
cohesion of the force, training and equipment, risk assessment and rules of
engagement." Resolution 1327 demonstrates a clear intention by the Security
Council to adopt a more cohesive and realistic means of command and control of
military forces, a vital first step in the creation of any effective armed
Questions To Consider About The
Paramount Role Of The U.N.
|8.2.1 What is the purpose of Chapter VI of the UN Charter? Has it ever worked?|
|8.2.2 Consider Article 39 regarding threats to peace, breaches of peace or acts of aggression, and note the 1974 definition of aggression in General Assembly Resolution 3314. What is difference between a breach the of peace and an act of aggression? Was the Blockade of Sharem El Sheck an act of aggression. If so, was the mining of Nicaraguan harbors during the Contra War? See, Nicaraugua v US.|
|8.2.3 What happens when the primary or one of the primary providers of troops, equipment or other resources to any U.N. permanent force is itself a party to a conflict condemned by the Security Council? One answer is, of course, that permanent members are removed from that problem by their ability to prevent U.N. decision making. What about, however, a conflict between India and Pakistan where both have provided substantial troops to the U.N.? How is the problem resolved, or can it be? Is there any legally binding solution?|
One of the potent legal problems in peace making/keeping operations is the legal structure and control of actions by international organizations. The potential for internal conflict is great; not only among member States, but between parallel organizations. While the creation of a European Defense Force, or of an effective U.N. military structure has positive implications, it also presents numerous possibilities for diverging and mutually exclusive command and organizational structures. As you review the following examples of coalition warfare, keep in mind those potential problems and consider their solutions.
The North Atlantic Treaty Organization describes itself in this way:
Atlantic Treaty of April 1949 brought into being an Alliance of
independent countries with a common interest in maintaining peace and
defending their freedom through political solidarity and adequate military
defence to deter and, if necessary, repel all possible forms of aggression
against them. Created within the framework of Article 51 of the United
Nations Charter, which reaffirms the inherent right of individual or
collective defence, the Alliance is an association of free states united
in their determination to preserve their security through mutual
guarantees and stable relations with other countries.
NATO is the Organisation which serves the Alliance. It is an inter-governmental organisation in which member countries retain their full sovereignty and independence. The Organisation provides the forum in which they consult together on any issues they may choose to raise and take decisions on political and military matters affecting their security. It provides the structures needed to facilitate consultation and cooperation between them, not only in political fields but also in many other areas where
policies can be coordinated in order to fulfil the goals of the North Atlantic Treaty.
NATO's essential purpose is thus to safeguard the freedom and security of all its members by political and military means in accordance with the principles of the United Nations Charter.
The NATO Handbook (1992).
Beginning March 23, 1999 NATO aircraft launched repeated attacks against Yugoslavian armed forces and other targets. For NATO's view of the historical background of this conflict see the NATO web site. There, NATO says that its objectives in instituting the attack were:
On June 9, NATO and the Federal Republic of Yugoslavia signed a a Military-Technical Agreement which permitted "...deployment in Kosovo under UN auspices of effective international civil and security presences," and in which the Yugoslavian Goverment agreed:
|...that the international security force ("KFOR") will deploy following the adoption of [a U.N. Security Council resolution] and operate without hindrance within Kosovo and with the authority to take all necessary action to establish and maintain a secure environment for all citizens of Kosovo and otherwise carry out its mission.|
On 10 June, 1999 the Security Council adopted Resolution 1244 which authorized "...Member States and relevant international organizations to establish the international security presence in Kosovo ... with all necessary means to fulfil its responsibilities..."
On June 2, 2000, the ICTY prosecutor reported to the UN Security Council that she found no basis to open a criminal investigation for NATO's conduct of its campaign in Kosovo. See, U.N. Doc. S/PV.4150 (June 2, 2000).
In 1968 the Warsaw Pact countries, lead by the Soviet Union and East Germany invaded Czechoslovakia to suppress a liberal regime under Alexander Dubcek. The Soviets argued the invasion was justified under the terms of the Warsaw Treaty of 1955, although it was largely viewed as an attempt to prevent the spread of economic and social liberalization.
The Soviet Union used military exercises to threaten an invasion unless Dubcek complied with Soviet demands. These exercises allowed the Soviet Union to deploy forces along Czechoslovakia's borders with Poland and East Germany. On August 20, 1968, twenty-three Soviet divisions, accompanied by one Hungarian, two East German, and two Polish divisions invaded Czechoslovakia and installed a new communist government.
Dubcek recalls Soviet leader Breznev's explanation of the reasons underlying
|He said that since the end of the last war, Czechoslovakia had been a part of the Soviet security zone, and that the Soviet Union had no intention of giving it up. What had worried the Soviet Politbureau most about Prague had been our tendency toward independence: that I did not send him my speeches in advance for review, that I did not ask his permission for personnel changes. They could not tolerate this, and, when we had not submitted to other forms of pressure, they had invaded the country.|
Alexander Dubcek, Hope Dies Last. The Autobiography of Alexander (Kodansha International, 1993) at p. 212.
The immediate legal aspects of this action were a sort of
uncomfortable military occupation in response to the mass passive resistance of
the Czech population:
|This is bizarre kind of occupation. Although occupying forces have taken over key points they have not established martial law (except in some provincial cities), have not imposed military government, and have not yet installed puppet government. Legally constituted government claims to be still in being: 22 out of about 30 Ministers attended Cabinet meeting yesterday, apparently in Hradcany Castle. National Assembly claims to be in continuing session in its own building. Communist Party organs not only continuing to operate but managed to convene Party Congress under noses of occupying forces despite fact that Congress severely complicates Soviets' problems in installing compliant regime.|
Telegram From United States Embassy in Czechoslovakia to Department of State, August 24, 1968, Department of State, Central Files, POL 27-1 COMBLOC-CZECH, Confidential; Immediate.
Consider, the Warsaw Pact's rationale, and the Breznev
Doctrine in light of the following quote from the ICJ's decision in Nicaraugua v US
at ¶ 246.
|the principle of non- intervention derives from customary international law. It would certainly lose its effectiveness as a principle of law if intervention were to be justified by a mere request for assistance made by an opposition group in another State - supposing such a request to have actually been made by an opposition to the regime in Nicaragua in this instance. Indeed, it is difficult to see what would remain of the principle of non-intervention in international law if intervention, which is already allowable at the request of the government of a State, were also to be allowed at the request of the opposition. This would permit any State to intervene at any moment in the internal affairs of another State, whether at the request of the government or at the request of its opposition. Such a situation does not in the Court's view correspond to the present state of international law.|
In 1950 North Korean forces invaded South Korea (for excellent background material see the U.S. Army history on-line). Following a Russian walk-out from the security Council, the council passed Resolution 83 which determined that the northern invasion was a breach of the peace and called upon member states to "furnish such assistance ... as may be necessary to repel the armed attack and to restore international peace and security in the area." By October, the Security Council was unable to function since the USSR delegate had returned to exercise his nation's veto power. Consequently, the Korean question was transferred to the General Assembly where no veto power existed.
On 3 November the General Assembly adopted the landmark Uniting
For Peace Resolution. The General Assembly resolved:
|... that if the Security Council, because of lack of unanimity of the permanent members, fails to exercise its primary responsibility for the maintenance of international peace and Security in any case where there appears to be a threat to the peace, breach of the peace, or act of aggression, the General Assembly shall consider the matter immediately with a view to making appropriate recommendations to Members for collective measures, including in case of a breach of the peace or act of aggression the use of armed force when necessary, to maintain or restore international peace and security.|
General Assembly Resolution 377(v), 3 November, 1950.
armed forces, including ground, air and naval units, under the United
Nations flag, were deployed in the Korean peninsula, and they engaged in
extensive and often fierce combat with North Korean and Chinese Communist
forces. The United
Nations Command in Korea still maintains extensive forces although the
current reality is that outside Korean military assets those forces are from the
Questions About Warfare By International Organizations
8.3.1 Consider the following examples of warfare by international organizations:
Where do peace-keeping operations fall within this spectrum. Was the action in Bosnia peacekeeping by the U.N. or by NATO. What about Kosovo? Did Resolution 1244 have any effect on the legality of NATO actions in Kosovo?
|8.3.2 What was the Persian Gulf Operation? How should coalition warfare be treated? Does it fall under Chapter VII? If not, is it justified by peace and security resolutions? Draft a peace and security resolution which would authorize action by any member state to restore peace and security to the Gulf following the Iraqi invasion of Kuwait.|
|8.3.3 Examine the list of objectives stated by NATO regarding its attack on Serbian forces in Kosovo. Were those objectives a sufficient basis to justify use of force? Identify the supporting legal doctrine to support your answer. Were all those objectives met? If not, does that affect your answer to the prior question?|
|8.3.4 Was the Warsaw Pact occupation of Czechoslovakia subject to Geneva and Hague Regulations? What is the effect of signature by the legitimate government of terms of capitulation (the "Moscow Protocol") which met Soviet demands?|
Certain non-governmental organizations ("NGO's") have played and continue to play in both the development and application of the laws of war. The chief occupant of that duel role is the International Committee of the Red Cross ("ICRC"), which is also unique in its position as an exemplar of humanitarian organizations in International Treaties (see, e.g. Geneva Civilians Convention at Article 11). The ICRC lists as areas of potential cooperation with belligerents
|The release and transfer of prisoners|
|The search for missing persons|
|Civil Military Cooperation (CIMIC) structures and the
|The American authorities were enormously sensitive to the periodic findings of the Swiss Legation and the IRCC, not only because their representatives were guaranteed unrestricted access to the POWs by Article 88 but because any findings by these agencies of American mistreatment of POWs would almost certainly bring immediate retaliation against American prisoners in German hands|
Arnold Krammer, Nazi Prisoners Of War In America, (Scarborough
House, 1996) at 38.
|The War Department was startled to learn from the International Red Cross that the first contingent of [German] prisoners assigned to France was not being maintained according to the Geneva Convention. In fact, the Red Cross revealed that starvation conditions existed in the French POW depots.|
Ibid at 239.
Other NGO's have, in recent years, increased
their influence and participation in international affairs in general, and in
particular with relation to the law of war. Human
Rights Watch and Human
Rights First, for example have been quite influential in the dialogue
relating to use of force and employment of certain types of weapons. Amnesty
International and Medecins Sans Frontieres
have also played effective roles on certain issues.
Questions About Non-Governmental Organizations
|8.4.1 If neutrality has ceased to exist as a legal status (see, Chapter IX), can NGOs play the protecting power role. Don't NGOs have the same problem through corporate identity? How would you resolve that dilemma?|
8.4.2 When does an NGO cross the line into active belligerency on one side? Suppose an NGO lobbies against a particular weapons system upon which one side uniquely relies. Is it justified in viewing that NGO as an hostile entity? What if the NGO is, in fact, influenced by the opposing state to take that position?