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The prohibition of the threat or use of force by States is the keystone of public international law.
While a casual observance of international affairs suggests that violations of the prohibition are rife, to date, no State has been willing to deny the existence, or relevance, of the prohibition. Indeed, it can be argued that to greater or lesser extents States rely on the prohibition for their national security and that, most of the time, the prohibition is a norm that effectively regulates State behaviour. At the same time, the scope of the prohibition - and its exceptions - are hotly contested. As a consequence, it is essential for public international lawyers to understand international law’s regulation of inter-State armed violence.
This subject will examine the substantive rules on the use of force (the jus ad bellum) and related elements of international humanitarian law and international criminal law. Recent international military operations in Iraq and Syria will form a central case study to which we will return in various classes in order to understand how the sparse rules under the Charter of the United Nations have been interpreted and applied by States – as well as the legal controversies this has caused. We will also examine events of contested legality such as the 2001 use of force against the Taliban in Afghanistan following 9/11, the 2003 invasion of Iraq by the Coalition of the Willing, the exercise of the Responsibility to Protect in Libya in 2011, the 2011 killing of Osama Bin Laden, the creation of the Force Intervention Brigade attached to the United Nations Organization Stabilization Mission in the Democratic Republic of the Congo in 2013, and Russia’s purported annexation of Crimea in 2014, as well as the recent criminalisation of acts of aggression. In doing so, we will seek to understand the politics behind the legal regulation of the use of force, including in relation to the development of customary international law.
Drawing on the lecturer’s experience in advising the Australian Government, and engaging at the United Nations, on use of force issues, the subject will take students beyond the literature and provide an insider’s understanding of the law in practice, positioning students to be able to provide valuable advice on issues of key strategic importance.
Principal topics include:
- The history and content of the prohibition of the threat or use of force under Article 2(4) of the Charter of the United Nations and the parallel rule under customary international law;
- Consent to use of force;
- The exercise of individual and collective self-defence under Article 51 of the Charter and complementary rules of customary international law;
- Current debates on the exercise of self-defence against non-State actors in the territory of another State;
- Collective security and the authorisation of the use of force by the United Nations Security Council;
- The role of the General Assembly in relation to the use of force by States;
- Humanitarian intervention and the Responsibility to Protect;
- Inter-State armed violence and international humanitarian law;
- The crime of aggression under the Rome Statute of the International Criminal Court.
Intended learning outcomes
A student who has successfully completed this subject will:
- Have a sophisticated understanding of the prohibition of the threat or use of force by States.
- Have an advanced and detailed knowledge of the agreed exceptions to the prohibition.
- Be able to understand and critique contested exceptions to the prohibition.
- Have a sophisticated and integrated understanding of the relationship between the jus ad bellum and international humanitarian law, as well as between the jus ad bellum and international criminal law.
- Have a sophisticated understanding of the role played by the United Nations Security Council in relation to the use of force by States, and the more limited roles of the General Assembly and the International Criminal Court.
- Be able to critically examine, analyse, interpret and assess the legitimacy, coverage and effectiveness of the rules of the jus ad bellum, and related rules of international humanitarian law and international criminal law.
- Be an engaged participant in debate regarding contemporary use of force issues in international practice.
A student who successfully completes this subject will:
- Have advanced analytical and research skills, including the capacity to understand and evaluate complex legal sources and literature.
- Have the cognitive and technical skills to generate critical and creative ideas relating to the use of force by States.
- Have the communication skills to clearly articulate and convey complex information regarding the legal regulation of the use of force by States to specialist and non-specialist audiences.
Last updated: 11 February 2021