The Use of Force in International Law

The use of force in international law
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Contents
 Introduction
 Learning outcomes
 1 History of the law on the use of force

 1.1 The post-1945 legal framework
 1.2 The use of force authorised by the UN

Security Council
 1.3 The use of force in self-defence
 1.4 Self-defence against non-state actors
 2 The law of armed conflict

 2.1 Overview of international humanitarian
law
 2.2 The main principles of IHL
 2.3 Protection of civilians
 3 Humanitarian intervention and the

responsibility to protect
 3.1 What is humanitarian intervention?
 3.2 The dilemma of intervention
 3.3 Beyond humanitarian intervention:

some of the critical points
 3.4 Responsibility to protect
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 Conclusion
 Keep on learning
 References
 Further reading
 Acknowledgements
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Introduction
In this free course, The use of force in international law, you
will study the law on the use of force. This is one of the central
topics in public international law, as it contains the body of
principles aimed at ensuring territorial sovereignty and
independence of states, which are the main actors in international
law.
The prohibition of the use of force and the principle of non-

intervention in the internal or external affairs of other states are two
of the fundamental principles of international law governing
international relations. However, through studying this course, you
will discover that the operation of the rules on the use of force is a
contentious topic in contemporary international affairs. The
traditional set of rules on the use of force is increasingly being
challenged in the modern world by complex emergency situations
and also by the growing participation of actors other than the
states on the international scene, whose presence and acts pose a
challenge to the application of international law.
By engaging in online activities and considering the real scenarios

presented in this course you will have a chance to experience for
yourself how challenging the application of the rules can be and to
identify some of the main difficulties that lie ahead. After studying
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this course, test your knowledge on international law and
humanitarian intervention by playing the game Saving Setrus.
This OpenLearn course is an adapted extract from the Open

University course W821 Exploring the boundaries of
international law.
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Learning outcomes
After studying this course, you should be able to:
 explain the rules governing the law on the use of force

and their evolution
 analyse case examples relating to the use of force in
international law and be able to critically analyse how
the rules of international law have been (mis)applied
in particular situations
 understand how international law regulates the
conduct in wars of both international and non-
international character
 comment on the key challenges to the operation of the
rules on the use of force in the contemporary
international setting
 demonstrate enhanced skills and confidence in
conducting research in international law.
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1 History of the law on the use of force

For centuries, states have resorted to force in their international
relations in order to achieve particular, desired aims. The use of
violence has proved to be an accepted, although tragic in its
consequences, method of resolving disputes between states.
States reserved the right to wage war without any internationally
agreed regulatory framework. Nevertheless, over time, the
concepts of ‘just and unjust war’ emerged. The distinction between
the two can be traced back to ancient Rome and the Fetials
(fetiales), a group of priests who were responsible for maintaining
peaceful internal and external relations and who gave rise to fetial
law (ius fetiale) – religious law regarding the process of creation,
interpretation and application of treaties and regulations on the
declaration of war. The concept of ‘just war’ has changed over
centuries (Von Elbe, 1939).
Roman law of war and peace

Deliberations about war were expected to pass through these
priests, who would seek a judgment of the gods about the justice
of the proposed course of action. If it was decided that a grave
breach of the peace had in fact occurred, such that a just war
would be warranted, the fetials would first approach the guilty city
to demand redress. If, after a certain period of time, no satisfaction
was given, war could begin. (...) Declarations of war were cast in
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form of a lawsuit, in which the verdict transmitted by the fetials was
meant to decide on the question whether the war could be rightly
waged. Whether or not a war should be waged (to enforce a
verdict) would then be the matter for a new decision, to be
rendered by the king, the senate, or even (in later periods) the
entire people.
(Reichberg et al., 2006, pp. 47–8)
The doctrine of ‘just war’ was further influenced by Christian

theologians such as St. Augustine and St. Thomas Aquinas, the
latter famously stated in Summa Theologica that the three
criteria for just war are:
1. it should be waged by a sovereign authority

(prohibition of waging a private war)
2. it must have a just cause (punishment of wrongdoers)
3. a just cause must be accompanied by the right
intention.
Together with the rise of independent states in Europe, the

doctrine began to evolve. In light of the growing number of
sovereign states, wars started to be seen and defined as a state of
legal affairs rather than a matter of subjective moral judgment.
States no longer found themselves in a position to judge if another
state’s reason for resorting to force was just or not. This approach
was supported by the rise of positivism, which strongly focused on
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the idea of sovereignty and by the Peace of Westphalia 1648,
which established the European system of the balance of power.
This system survived in Europe until the beginning of the twentieth
century, effectively coming to an end with the outbreak of the First
World War.
In the aftermath of the First World War efforts were made to rebuild
international relations between states through the establishment
and operation of an international institution which would play a
central role in ensuring that such acts of aggression would not
occur again. The League of Nations (LON) was created in 1919
with a view to achieving this aim. Under the 1919 Covenant of the
League of Nations, member states were required to submit any
inter-state disputes for arbitration or seek other forms of judicial
settlement at the League’s Council. However, the Covenant did not
in fact revoke the right of states to resort to war, although it
subjected this provision to some limitations. In 1928, another
attempt at the legal regulation of the use of force was made, in the
form of the General Treaty for Renunciation of War as an
Instrument of National Policy, more commonly referred to as the
Kellogg–Briand Pact. Parties to this treaty declared that they
‘condemn recourse to war’ and agreed to ‘renounce it, as an
instrument of national policy in their relations with one another’
(Article 1).
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The outbreak of the Second World War in 1939 once again marked
the end of peaceful international relations. The tragic events of this
international conflict led to the adoption of the Charter of the
United Nations (UN Charter) in 1945 resulting in the development
of a framework, aimed at regulating the use of force by members
of the international community. That system remains in force.
1.1 The post-1945 legal framework

The current legal framework regulating the use of force in
international law is enshrined in the UN Charter. The maintenance
of international peace and security is the primary purpose of the
UN (Article 1(1) UN Charter). This includes:
prevention and removal of threats to the peace, [...] the

suppression of acts of aggression or other breaches of the peace,
[...] and in conformity with the principles of justice and international
law, adjustment or settlement of international disputes or situations
which might lead to a breach of the peace.
Therefore, as a general rule of international law, the use of force is

prohibited.
Box 1 The illegality of the use of force

Although states have resorted to the use of force in international
relations on multiple occasions, there have been only two cases in
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which the International Court of Justice (ICJ) has found that there
had been a violation of the prohibition of the use of force:
 Military and Paramilitary Activities in and

against Nicaragua (Nicaragua v The United
States of America) ICJ Rep 1986
 Armed Activities on the Territory of the Congo
(Democratic Republic of the Congo v Uganda)
ICJ Rep 2005.
The UN Charter further provides that:
All Members shall refrain in their international relations from the

threat or use of force against the territorial integrity or political
independence of any state, or in any other manner inconsistent
with the Purposes of the United Nations.
(Article 2(4) UN Charter)
As you may have noticed from the wording of Article 2(4),

prohibited acts include both the threat of force and the use of it.
It is important to remember that the prohibition on the use of force

is not absolute. As the wording of Article 2(4) suggests, the force
is permissible in circumstances consistent with the purposes of the
UN. Chapter VII of the UN Charter (‘Action with Respect to Threats
to the Peace, Breaches of the Peace, and Acts of Aggression’),
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outlines when a state can resort to the use of military force against
other states. Force may be used against another state when:
 such an act is authorised by the UN Security Council

as part of collective security mechanism
 a state is acting in self-defence.
You will now consider these situations in more detail.
1.2 The use of force authorised by the

UN Security Council
The UN Security Council plays a major role in the global collective
security system by deciding whether force may be used against
other states. Should a situation that threatens international peace
and security occur, it is within the Security Council’s mandate to
‘determine the existence of any threat to the peace, [...] or act of
aggression’ as well as to ‘make recommendations, or decide what
measures shall be taken in accordance with Articles 41 and 42’
(Article 39 UN Charter). In such a situation, a state (or group of
states) does not act unilaterally (as in the case of self-defence),
but rather states act collectively by resorting to force acting under
the authority of the international organisations (e.g. the UN
Security Council).
Box 2 The use of force in Libya
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UN Security Council Resolution 1973 of 17 March 2011 is an
example of the authorisation of the use of force by the UN Security
Council. On the 17 February 2011, soon after the outbreak of
protests in Egypt and Tunisia, which marked the beginning of ‘The
Arab Spring’, Libyans in Benghazi joined in peaceful protests
against the oppressive rule of Colonel Muammar Gaddafi. They
demanded that he step down after 42 years of ruling Libya and
called for an open, democratic and inclusive Libya. They
demanded the end of an era of oppression and gross human rights
violations in the country, such as those committed in 1996 in the
Abu Salim prison. The response of Gaddafi to this protest with
armed violence against civilian protesters ignited a civil war
between the government forces in support of Gaddafi and the
opposition armed forces formed by the rebels.
On 17 March 2011, the UN Security Council, acting under Chapter

VII of the UN Charter, adopted Resolution 1973 authorising
member states ‘to take all necessary measures […] to protect
civilians and civilian populated areas under threat of attack in the
Libyan Arab Jamahiriya, including Benghazi, while excluding a
foreign occupation force of any form on any part of Libyan territory.’
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Figure 1 Protesting in Libya, 2011
View description - Figure 1 Protesting in Libya, 2011
1.3 The use of force in self-defence

States may legitimately resort to the use of armed force in self-
defence (Article 51 UN Charter). But what is the meaning of ‘self-
defence’?
Self-defence is a lawful reaction to the ‘armed attack’ against the

territorial integrity of a state, which also diminishes its political
independence (acts forbidden in Article 2(4) UN Charter). By
executing the right to use force in self-defence, states are
conducting a unilateral act.
The traditional meaning of the right to self-defence originates from

the Caroline case (29 Brit & For St Papers) (Box 3); these
principles were accepted by the British Government at the time
and formed a part of customary international law.
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Figure 2 The destruction of the Caroline
View description - Figure 2 The destruction of the Caroline
Box 3 The Caroline case (1837)

This case sets out a customary international law definition of the
right to self-defence. It originates from a dispute between the
British Government and the US Secretary of State regarding the
destruction of an American vessel in an American port by British
subjects. The reason behind this act was the use of the vessel to
transport munitions and groups of Americans, who were
conducting attacks on the Canadian territory. The US Government
declared that the attack on the vessel constituted an attack against
the American territory. The British Government responded by
claiming the right to self-defence. The subsequent diplomatic
correspondence between the parties contained an outline of the
key elements for legitimate self-defence. The US Secretary of
State, Daniel Webster, emphasised that for the self-defence to be
lawful in international law, the British Government must prove the:
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necessity of self-defence, instant, overwhelming, leaving no choice
of means and no moment for deliberation
and that assuming such a necessity existed at the time:
the act justified by the necessity of self-defence, must be limited by

that necessity, and kept clearly within it.
(Webster and Fox, 1857)
The customary nature of the right to use force in self-defence was

further confirmed by the International Court of Justice (ICJ) in the
Nicaragua Case (Military and Paramilitary Activities in and
against Nicaragua (Nicaragua v United States of America
ICJ Rep 1986). This is one of the key judgments in international
law and you will consider it in greater detail in Activity 1.
Activity 1
This activity is primarily designed to build your research skills in
international law and to strengthen your ability to critically analyse
international documents. It is also designed to allow you to practise
the skill of comparative analysis. When consulting the texts for this
activity, you should focus on selecting relevant parts of the
decisions, which comment on the issues that the questions are
asking you to consider.
Find and read:
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 the ICJ decision in the Nicaragua Case (paras 191–95,
Merits)
 the ICJ Advisory Opinion on the Legality of the
Threat or Use of Nuclear Weapons (ICJ Rep
1996, paras 34–47).
Then compare and contrast these paragraphs with:
 the dissenting opinion of Judge Higgins in the ICJ

Advisory Opinion on Legal Consequences of the
Construction of a Wall in the Occupied
Palestinian Territory (ICJ Rep 2004), focus on
paragraphs 33–4.
a. When can states exercise the right to use force in self-
defence?
b. What are the criteria with which a state must comply
when engaging in the lawful act of use of force in self-
defence?
c. Do you agree with the opinion expressed by Judge
Higgins?
View comment - Activity 1
1.3.1 Criteria for self-defence

In order to lawfully exercise the right to self-defence, a state must
be able to demonstrate that it has been a victim of an armed
attack. The burden of proof in such a case lies with the state
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seeking to justify the use of force in self-defence. Nevertheless,
not all attacks will constitute an armed attack for the purposes of
Article 51: only the most grave forms of attack will qualify
(Nicaragua Case, para.191).
Furthermore, the ICJ held in the Nicaragua Case (Merits) that ‘self-
defence would warrant only measures which are proportional to
the armed attack and necessary to respond to it’ (para. 176). This
statement sets out two important principles in international law
concerning the use of force: the principle of proportionality and the
principle of necessity. In this context, proportionality means that the
response to an armed attack must be reflective of the scope,
nature and gravity of the attack itself. On the other hand, the
principle of necessity guards against the use of measures which
are excessive and not necessary in response to an armed attack.
The meaning of ‘armed attack’ causes significant controversy in

international law. In the Nicaragua Case and in Legal
Consequences of the Construction of a Wall in the
Occupied Palestinian Territory Advisory Opinion ICJ Rep 2004,
the ICJ rejected the idea that an armed attack may include ‘not
only acts by armed bands where such acts occur on a significant
scale but also assistance to rebels in the form of the provision of
weapons or logistical or other support’(Nicaragua Case, para.195).
In other words, it is necessary to show that an armed attack is
attributable to a state.
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In the Nicaragua Case, Judge Higgins strongly opposed this view
and argued that the act involving the use of force from actors other
than a state, such as groups of insurgents or terrorist groups, may
give rise to the exercise of the right of self-defence by the attacked
state. This statement highlights a very contentious issue in modern
international relations, namely the use of force in self-defence
against non-state actors.
1.4 Self-defence against non-state

actors
The law on the use of force is traditionally designed to regulate the
legality of armed force between states. This reflected the reality of
the aftermath of the Second World War and the efforts of the
international community to prevent such conflict from recurring in
future. However, over the past few decades, states have
increasingly been subjected to attacks by non-state entities. This
raises questions about the adequacy of the traditional legal
framework on the use of force in modern armed conflicts. The key
questions are:
 When (if at all) may a state lawfully use force against

non-state actors?
 May states exercise pre-emptive self-defence in
anticipation of attack?
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These questions attracted great international attention in the
aftermath of the terrorist attacks on the World Trade Centre on 11
September 2001 (the ‘9/11’ attacks) carried out by members of the
al-Qaeda network.
Soon after the 9/11 attacks, the UN Security Council issued

Resolution 1373 of 28 September 2001. The language of this
resolution may suggest an almost unlimited mandate to use force
against terrorist groups. It reads:
Acting under Chapter VII of the Charter of the United Nations, [...]
2. Decides also that all states shall:
(b) Take the necessary steps to prevent the commission of terrorist

acts [...].
In addition, the UN Security Council established a Counter-

Terrorism Committee, mandated with the implementation of the
resolution.
Although there were instances of the use of force against non-

state actors prior to 2001, the 9/11 attacks urged discussion about
the right to pre-emptive self-defence in international law. Following
the attacks, the Bush Administration in the USA adopted a security
strategy, based on the right to pre-emptive self-defence. The
doctrine of pre-emptive self-defence assumes the right to use force
without international authorisation in order to prevent the
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development of a possible future attack by another state. The
USA’s National Security Strategy (US Government, 2002) used
the term of pre-emptive self-defence, particularly with reference to
terrorist attacks:
The war against terrorists of global reach is a global enterprise

of uncertain duration.
[...]
And, as a matter of common sense and self-defence, America will

act against such emerging threats before they are fully formed.
The idea of pre-emptive self-defence is extremely controversial, as

it goes against the core principles of international law regulating
the use of force. The UN Charter allows for the use of force only in
extreme circumstances, as a means of last resort, once all
peaceful means have been exhausted. Furthermore, the use of
force against another state in circumstances where there is a lack
of an armed attack in the first place questions the necessity and
proportionality of an attack carried out by a state which acts on the
basis of ‘pre-emptive self-defence’.
The ICJ has not yet commented on the existence of a right to use
force against non-state actors, nor the right to pre-emptive self-
defence.
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2 The law of armed conflict

In Section 1 we looked at the rules governing the resort to force by
states in international relations (jus ad bellum – law on on the
use of force).This section looks at a specific branch of international
law, which aims to regulate the conduct of states and individuals
during armed conflict: international humanitarian law (IHL) (jus in
bello – law of war).
The study of IHL will enable you to understand how international

law responds to situations where the force has been used (or
where states are engaged in war) as well as what practical
ramifications the rules of IHL have for the protection of all actors
involved in warfare.
Activity 2
Consider the following questions:
a. Is anything allowed in war?

b. Why does international law seek to regulate the
conduct of warfare?
c. What actors are involved in armed conflict and what
type of protection, in your opinion, should be afforded
to them?
d. Can you think of any challenges to the regulation of
the conduct in war in the contemporary world?
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2.1 Overview of international

humanitarian law
If international law is, in some ways, at the vanishing point of law,
the law of war is, perhaps even more conspicuously, at the
vanishing point of international law.
(Lauterpacht, 1952)
International humanitarian law (IHL) acts as lex specialis (law

governing a specific subject) in international law. It sets out the
rules applicable to a very specific situation in international
relations: the state of armed conflict.
The main aim of IHL is to limit the detrimental effects of warfare by

providing protection to those who do not take part or no longer
take an active part in hostilities. It also defines rules of conduct for
those engaged in armed conflict and provides restrictions
regarding the methods and means of warfare that can be
employed.
Historical development of IHL

Although the customary principles regarding the conduct of
hostilities have been formed over centuries, the origins of
contemporary IHL go back to the nineteenth century and the battle
of Solferino (1859). Henri Dunant, a Swiss businessman who
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witnessed the grave suffering resulting from this battle, was
appalled by the extent of human suffering and the lack of
assistance to the sick and wounded. Dunant organised local
residents to provide help to the victims of the battle. The
humanitarian treatment of those no longer participating in
hostilities later became the core principle enshrined in the first
Geneva Convention in 1864.
Upon his return to Geneva, Dunant wrote a book, A Memory of

Solferino, which eventually led to the establishment of the
International Committee of the Red Cross (ICRC) in 1863 – an
organisation that promotes and guards the principles of IHL to this
day.
The ICRC has three emblems (Figure 3); their purpose is to make
combatants aware that people, buildings and vehicles bearing the
symbols are protected under the 1949 Geneva Conventions and
should not be the object of attack.
Figure 3 The three emblems of the ICRC: (a) red cross; (b) red crescent; (c)
red crystal
View description - Figure 3 The three emblems of the ICRC:

(a) red cross; (b) red crescent; (c) red ...
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The Law of The Hague and the Law of

Geneva
Traditionally, the law of armed conflict is divided into two branches:
the Law of Geneva and the Law of the Hague (Figure 4).
Figure 4 The two legal arms of IHL
View description - Figure 4 The two legal arms of IHL
In this course, we will focus on the four Geneva Conventions of

1949 and the three Additional Protocols of the Geneva
Conventions (AP I and II 1977, AP III 2005), which create the core
of the legal framework of protection for victims of armed conflict.
Aim to familiarise yourself with the relevant provisions of the
Geneva Conventions related to the various issues discussed in
this section.
Types of armed conflict

Although generally only states can become a party to treaties, the
rules of IHL must be respected by all parties to an armed conflict,
irrespective of whether they are a state or non-state entity (e.g. a
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group of guerrilla fighters). However, the application of the correct
legal framework depends primarily on the type of armed conflict.
IHL distinguishes between two main types of conflict:
 international
 non-international (internal).
International armed conflict (IAC) involves fighting between armed

forces of at least two states. The law applicable to international
armed conflicts is enshrined in the Geneva Conventions I–IV and
AP I.
In recent years non-international armed conflicts (NIAC) have

become much more common. Such conflicts, civil wars, involve
fighting between the regular armed forces of the state, on the one
hand, and identifiable armed groups on the other; or else, fighting
between two or more armed groups but with no state involvement.
Box 4 Armed conflict(s) in Libya

Between February and October 2011, Libya was engaged in an
armed conflict. When the Libyan Revolution broke out, Libya was
in a state of an internal armed conflict: the fighting between pro-
Gaddafi militias and the rebel armed groups (called thuwar)
constituted NIAC.
Libya was also engaged in an IAC with the states participating

militarily in the implementation of the measures authorised by UN
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Security Council Resolution 1973; this included the establishment
of a no-fly zone over Libya.
Not all fighting within one country will be a civil war. There is a
difference between internal disturbances, such as riots or protest
against the state authorities, and NIAC. NIAC requires reaching of
a certain threshold of intensity of general violence and it must
extend over a certain period of time. The legal framework
applicable to NIAC is much more limited than the framework
applicable to IAC. It comprises Article 3 common to all four Geneva
Conventions (Common Article 3) and the AP II.
Box 5 Common Article 3 of the Geneva

Conventions
Common Article 3 is often called ‘a treaty in miniature’ due to the
number of rules it contains. It reads as follows:
In the case of armed conflict not of an international character

occurring in the territory of one of the High Contracting Parties,
each Party to the conflict shall be bound to apply, as a minimum,
the following provisions:
1. Persons taking no active part in the hostilities,

including members of armed forces who have laid
down their arms and those placed ‘hors de combat’ by
sickness, wounds, detention, or any other cause, shall
in all circumstances be treated humanely, without any
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adverse distinction founded on race, colour, religion or
faith, sex, birth or wealth, or any other similar criteria.
To this end, the following acts are and shall remain

prohibited at any time and in any place whatsoever
with respect to the above-mentioned persons:
a.violence to life and person, in particular

murder of all kinds, mutilation, cruel
treatment and torture;
b.taking of hostages;
c.outrages upon personal dignity, in
particular humiliating and degrading
treatment;
d.the passing of sentences and the carrying
out of executions without previous
judgment pronounced by a regularly
constituted court, affording all the judicial
guarantees which are recognized as
indispensable by civilized peoples.
2. The wounded and sick shall be collected and cared
for.
An impartial humanitarian body, such as the

International Committee of the Red Cross, may offer
its services to the Parties to the conflict.
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The Parties to the conflict should further endeavour to
bring into force, by means of special agreements, all
or part of the other provisions of the present
Convention.
The application of the preceding provisions shall not

affect the legal status of the Parties to the conflict.
The conduct of the protagonists in both NIAC and IAC is

additionally regulated by the rules of customary international
humanitarian law (CIHL). CIHL is of particular importance in
modern armed conflicts. Generally, customary rules of IHL
complement the rules enshrined in treaty law. As a result of the
changing nature of warfare, treaty law is sometimes unable to
adequately respond to the challenges posed by contemporary
armed conflicts. As its rules derive from general state practice,
CIHL fills in these gaps and so it strengthens the protection
available to victims. Furthermore, customary rules are binding on
all states, irrespective of whether the state ratified a treaty.
Customary international humanitarian law and

the ICRC
In 2005, the ICRC conducted a study on customary international
humanitarian law. The study showed that rules regulating internal
armed conflicts are much more extensive under CIHL than under
treaty law. This is of particular significance, as the majority of
modern armed conflicts are of a non-international character.
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Furthermore, as the treaty law regulating NIAC is rather limited,
development of customary rules enhances protection of victims,
but also those taking active part in hostilities.
2.2 The main principles of IHL

IHL is based on three main principles:
1. proportionality
2. necessity
3. distinction.
You became familiar with the first two principles in Section 1. The
third main principle of IHL relates to the distinction between civilian
objects and military objectives. IHL requires all parties to a conflict
to balance military necessity with humanitarian principles, aimed at
limiting suffering in warfare. The application of the principle of
distinction means that only military objectives can be subjected to
an armed attack. This rule is codified in Articles 48 and 52(2) of AP
II, to which no reservations have been made. It is a very important
principle as it has implications for the applicable system of
protection explained in Table 1.
Table 1 The system of protection of civilians and combatants under

IHL
CI CO
VI MB
LI AT
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A AN
N TS
S
do do
no take
t part
ta in
ke host
pa ilitie
rt s
in
ho
sti
liti
es
do hav
no e
t the
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a take
rig part
ht in
to host
ta ilitie
ke s
pa and
rt hav
in e
ho the
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liti gati
es on
(h to
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e rule
rig s of
ht IHL
to
be
res
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pe
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m may
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be be
pu puni
nis shed
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d the
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pa e
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ne prot
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ly: d
ar WH
e EN
pr they
ot no
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ect long
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th ilitie
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D
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Activity 3
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Read the following articles of Geneva Convention III 1949,
which sets out the rules regulating the treatment of prisoners of
war: 2–5, 12–18, 22–23, 25–30, 33–34, 41, 49–50, 52, 71, 78.
Bearing in mind what you've learned so far about IHL, try to apply
your knowledge in a practical case scenario by role playing in an
online game, where you will become a commander of a prisoner of
war camp. Your role will be to run the camp according to the
principles of IHL. You will receive feedback on the decisions you
have made as you progress through the stages of the game. The
game is called ‘Prisoners of war’.
2.3 Protection of civilians

The general framework of protection available to civilians is
contained in Geneva Convention IV and AP I and II.
Article 27 Geneva Convention IV affords general protection to all

civilians, without adverse distinction based on age, state of health,
sex, race, religion or political opinion. The prohibition of
discrimination is inherent to all of the Law of Geneva and therefore
applies also in conflicts of a non-international character.
Common Article 3(1) of the Geneva Conventions prohibits

discrimination on various grounds (see Box 5).
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However, it is essential to distinguish between the prohibition of
discrimination and the principle of differentiation. IHL explicitly
prohibits any form of discrimination in the application of its rules to
protected persons. Nevertheless, IHL simultaneously recognises
the specific needs and vulnerabilities of certain groups during war
and grants them further, additional, protection and rights.
Therefore, under the Law of Geneva framework, persons may be
entitled to both a general protection, applicable equally to all
combatants, civilians and persons classified as hors de combat,
as well as a special protection as a party particularly vulnerable to
armed conflict and certain types of violence.
Ethnic cleansing in Srebrenica

During the war in the former Yugoslavia, in July 1995, over 8000
civilian men of Bosnian Muslim origin, were killed by the Army of
Rebuplika Srpska under the command of General Ratko Mladič
(see Figure 5). The massacre was part of a policy of so-called
ethnic cleansing – a deliberate strategy aimed at the creation of
ethnically clean areas. This intentional mass killing not only
constituted a grave violation of the rules of IHL regarding the
protection of civilians, but also amounted to genocide.
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Figure 5 Preparation for burial of some of the Srebrenica victims
View description - Figure 5 Preparation for burial of some

of the Srebrenica victims
For the timeline of catastrophe in Srebrenica, see: Timeline:

Siege of Srebrenica (BBC, 2012).
Special protection under IHL

Two groups afforded special protection are women and children.
The specific needs of women may vary according to the situation

in which they find themselves during armed conflict. Although the
majority of women experience armed conflict as civilians, mostly
due to their traditional gender roles within the society as wives,
mothers and carers, an increasing number of women take an
active part in warfare, both in regular forces and guerrilla,
resistance or insurgent groups. Irrespective of the roles they play,
IHL attempts to provide particular protections, aimed at achieving
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special respect for women. Within the IHL framework, particular
rules have been adopted in relation to pregnant women and
mothers of young children.
Box 6 Protection for women under the Law of

Geneva
The Law of Geneva provides special protection for women:
 Mothers:
 (Articles 14, 16, 17, 21, 22, 23 GC IV)
 Detainees and Prisoners of War (POWs):
 Articles 14(2), 25, 97, 108 GC III
 Articles 76, 85, 89, 91, 97, 124, 132 GC IV
 Articles 76(2) GC AP I
 Articles 5(2)(a), 6(4) GC AP II.
 Specific provisions regarding protection from wartime
sexual violence:
 Articles 27 GC IV
 Articles 76 (1) GC AP I
 Articles 4 (2) GC AP II
 Common Article 3(1)(c) GC.
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Figure 6 ‘Rape is cheaper than bullets’, a poster advertising campaign

launched by Amnesty International to stop the use of sexual violence as a
weapon of war
View description - Figure 6 ‘Rape is cheaper than bullets’,

a poster advertising campaign launched by ...
Activity 4
Read paragraphs 333–58 from the Report of the International
Commission of Inquiry on Darfur to the United Nations
Secretary-General (UN, 2005). (UN, 2005).
1. Can you identify which rules of IHL have been violated

in the situations described in the report?
2. The report states that rapes have also been committed
by the Janjaweed. Are irregular armed groups bound
by the rules of IHL regarding protection of women in
armed conflict?
3. Do the instances of rape and other forms of sexual
violence raise any questions about the adequacy of
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IHL in the protection of women in armed conflict? Is
the law sufficient? Or is there perhaps more of a need
to nurture respect for the existing law?
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3 Humanitarian intervention and the

responsibility to protect
By now you should have a good understanding of law regulating
the resort to force by states as well as the rules of IHL, which
regulate conduct in armed conflict. In this section, we will look at a
topic that remains hugely controversial in international relations as
well as in international law: humanitarian intervention. Throughout
the study of this section, you will have an opportunity to use the
knowledge gained in Section 1 to critically approach the topic of
humanitarian intervention and to evaluate its validity from a legal
perspective.
3.1 What is humanitarian intervention?

The term humanitarian intervention is defined by Holzgrefe as:
The threat or use of force across state borders by a state (or a

group of states) aimed at preventing or ending widespread and
grave violations of the fundamental human rights of individuals
other than its own citizens, without the permission of the state
within whose territory force is applied.
(Holzgrefe, 2003, p. 18)
This definition alone indicates some of the key problematic issues

surrounding humanitarian intervention. Firstly, it involves the use of
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force (or a threat thereof) against another state without its consent.
This action itself indicates an attack on state sovereignty, which is
additionally strengthened by the second element of this definition:
implication of a failure of the state in question to secure the human
rights of its citizens.
Furthermore, there are several misconceptions about the meaning

of humanitarian intervention, some of which can be clarified as
follows:
1. Humanitarian intervention does not have the same

meaning as humanitarian assistance. There is a clear
distinction between those two categories, based on
the question of consent. In situations where
humanitarian assistance is needed, the host state
must consent to it. During IAC, the parties to an
armed conflict are in principle obliged under the rules
of IHL to permit relief operations for the benefit of
civilians, without distinction based on whether they
belong to an enemy state or not. The consent of the
state should not be a relevant issue. However, in
cases where no armed conflict is taking place, the
consent of the host state becomes crucial.
International law is clear in posing no objections to the
provision of humanitarian assistance. As confirmed by
the ICJ in the Nicaragua Case:
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There can be no doubt that the provision of strictly humanitarian
aid to persons or forces in another country, whatever their political
affiliations or objectives, cannot be regarded as unlawful
intervention, or as in any other way contrary to international law
(Military and Paramilitary Activities in and

against Nicaragua (Nicaragua v United States of
America) ICJ Rep 1986, 242)
1. The use of force by a state in order to rescue its own

nationals abroad does not amount to humanitarian
intervention. The famous case illustrating such an act
was the rescue by Israel of hostages held captive at
Entebbe airport in Uganda, after the hijacking of an Air
France aeroplane. Protection of citizens abroad was
also used as a justification for the invasion of Grenada
by the US in 1984.
2. An intervention based on the invitation by another
state does not constitute humanitarian intervention.
3. Peacekeeping operations (PKO) are not humanitarian
interventions. PKO are deployed by the UN on the
basis of mandates from the UN Security Council.
Their main aim is to maintain international peace and
security usually in the aftermath of armed conflict, but
some operations are deployed in order to prevent the
outbreak of conflict.
Examples of past humanitarian interventions
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Iraq (1991) – provision of humanitarian assistance to ethnic Kurds
by the US-led coalition troops and maintenance of a no-fly zone to
prevent attack by Iraqi air forces.
Somalia (1992) – The USA and the UN intervened to ensure the

delivery of international humanitarian aid to the region.
Kosovo (1999) – The NATO bombing of Belgrade as a response to

widespread attacks on the civilian population.
Sierra Leone (2000) – UK troops deployed to support UN

peacekeeping forces to protect civilians from gross violations of
their rights committed by rebel forces.
Darfur, Sudan (2004) – The African Union deployed peacekeeping

troops to protect civilians in the region, especially those in refugee
camps. However, the intervention failed to limit or eliminate the
violence.
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Figure 7 UN Peacekeeping forces
View description - Figure 7 UN Peacekeeping forces
3.2 The dilemma of intervention

The key tension in the debate on humanitarian intervention relates
to the intersection between the moral and legal aspects of
intervention.
From the legal perspective, humanitarian intervention can be seen

as violating one of the main principles enshrined in international
law: the political and territorial independence of the state. It can
therefore be argued that, apart from different phraseology, it simply
constitutes an act of illegal use of force. On the other hand, it is
difficult to object to the moral righteousness of intervening in order
to protect individuals in another country from gross violations of
their human rights. However, does the fact that something might
be morally right make it a lawful act?
It is important to distinguish between the legitimacy and the legality

of humanitarian intervention. The clash between the commitment
of the international community to the legality of actions in the
international arena and the ethical commitment to save lives
creates one of the major dilemmas in contemporary international
affairs. Questions have also been raised about the effectiveness of
humanitarian intervention, especially its timescale.
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Example: Genocide in Rwanda

The Rwandan genocide in 1994 is a good example of a failure of a
humanitarian intervention, which was catastrophic for the victims.
At the time when arguably it was most needed, the international
community, with the knowledge of the unveiling tragedy in
Rwanda, did not take any action to prevent mass killings of
civilians and attempted genocide.
Activity 5
In this activity you will consider whether humanitarian intervention
is a legal dilemma.
Read the views expressed by various academic commentators,

below, and compile a list of your legal arguments in favour of, and
against, humanitarian intervention.
‘Humanitarian war’ is a contradiction in terms. War and its

consequences, bombing and maiming people can never be part of
human rights and morality.
(Douzinas, 2000, p. 141)
I indicated that critics of humanitarian intervention are not pacifists.

They object to this kind of war, a war to protect human rights.
They do not object to wars, say, in defense of territory. This
position is somewhat anomalous because it requires separate
justifications for different kinds of wars. [...] Take the use of force
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in self-defense. What can possibly be its moral justification? Very
plausibly, this: that the aggressor is assaulting the rights of persons
in the State that is attacked. The government of the attacked State,
then, has a right to muster the resources of the State to defend its
citizens’ lives and property against the aggressor. The defense of
States is justified qua defense of persons. There is no defense of
the State as such that is not parasitic on the rights and interests of
individuals. If this is correct, any moral distinction between self-
defense and humanitarian intervention, that is, any judgment that
self-defense is justified while humanitarian intervention is not has
to rely on something above and beyond the general rationale of
defense of persons.
(Tesón, 2003, p. 99)
[…] the arguments in support of unilateral humanitarian

intervention do not stand up to close scrutiny. [...] By virtue of the
Charter of the United Nations, only the Security Council is
empowered to take forcible action against a State which is in
breach of its international undertakings to respect human rights.
(Dinstein, 2011, p. 74)
Intervention will be where and how US power chooses, the guiding

consideration being: ‘What is in it for us?’ [...]. To be sure, the
‘vision’ is cloaked in appropriate rhetoric about ‘democracy’ and all
good things, the standard accompaniment whatever is being
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implemented, and by whom, hence meaningless – carrying no
information, in the technical sense.
The declared intent, the record of planning, and the actual policies
implemented, with their persistent leading themes, will not be
overlooked by someone seriously considering ‘humanitarian
intervention’, which, in this world, means intervention authorized or
directed by the United States.
(Chomsky, 1994)
The substantial denial of women’s rights – whether civil, political,

economic, social, or cultural – has never served as the sole or
primary basis for military intervention.
[...]
These calls intensified when the Taliban began imposing a form of

gender apartheid in Afghanistan. It took the attack of September
11th, however, for the United States to mobilise Operation
Enduring Freedom in Afghanistan. Although the plight of women
under the Taliban was not a prime motivator for the intervention,
the rhetoric surrounding the intervention appropriated feminist
concerns about the quality of women’s lives under Taliban rule to
garner the support of domestic and international constituencies for
the Operation. Indeed, the propaganda value of violence against
women has long been recognised. To date, preventing harm to
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women has served only as a convenient makeweight argument in
the service of interventions initiated for other rationales.
(Van Schaack, 2011, p. 477–8, 488–9)
View comment - Untitled part
3.3 Beyond humanitarian intervention:

some of the critical points
Apart from those issues regarding the legality of humanitarian
intervention which you considered in the earlier part of this course,
one more question arises: what happens in the aftermath of
humanitarian intervention?
The matter of the ‘continuity’ of humanitarian intervention, or

rather, the question of who bears the burden of responsibility for its
effects, is significant in the context of the discussion regarding the
dilemmas of intervention. The debate usually oscillates around the
issues of territorial integrity and sovereignty of the state, where
intervention is allegedly needed. Much less attention is paid to the
long-term view of intervention as an act that impacts on the lives of
individuals, and not always in a positive sense. Some of the
aspects include:
 Human rights obligations – the premise of

intervention is that the human rights of individuals are
being violated in a grave manner and that the state
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does not fulfil its human rights obligations towards its
citizens. Who, in that case, should be responsible for
securing human rights? Can (or should) an
intervening party play this role?
 Security – military intervention increases the risk of
potential harm to individuals. Military operations
carried out by the intervening state(s) on the ground
increase the level of violence in the region and expose
civilians to the high risk of suffering serious harm.
Furthermore, violence may continue long after the
intervention has finished and, as such, constitute a
threat to the security of individuals. Who should be
responsible for ensuring the long-term, post-
intervention security? Is it at all possible?
 Migration – as a consequence of the use of force
and the threat to security attached to it, many people
become refugees or internally displaced persons.
What about protection of such persons? Should the
burden of protection rest on the intervening party? Do
human rights obligations apply extraterritorially?
 Liability for human rights violations
committed during humanitarian
intervention – the impact of intervention may have
tragic consequences resulting in further breaches of
the human rights of individuals. Godec (2010, p. 235)
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refers to two examples of such harms: acts of sexual
violence and post-conflict sex trafficking in Kosovo.
3.4 Responsibility to protect

As you have observed, the idea of humanitarian intervention has
proved to be a highly controversial concept. It has been criticised
both when it took place (e.g. Somalia, Bosnia, Kosovo) and when it
failed to happen (e.g. Rwanda). In light of the problems
surrounding humanitarian intervention a fundamental question has
emerged: ‘If humanitarian intervention is, indeed, an unacceptable
assault on sovereignty, how should we respond to a Rwanda, to a
Srebrenica, to gross and systematic violation of human rights that
offend every precept of our common humanity?’ (Annan, 2000).
In 2001, the idea of the ‘responsibility to protect’ (R2P) was born

and outlined in the Report of the International Commission on
Intervention and State Sovereignty (the ICISS Report). . The
main premise of R2P is that:
Sovereign States have a responsibility to protect their own citizens

from avoidable catastrophe – from mass murder and rape, from
starvation – but when they are unwilling or unable to do so, that
responsibility must be borne by the broader community of states.
(ICISS, 2001, p. viii)
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Unlike the traditional idea of ‘humanitarian intervention’, the
concept of R2P is composed of three responsibilities:
 to prevent
 to react
 to rebuild.
This approach appears to be different from the traditional view of

humanitarian intervention; it suggests a continuum of obligations
for intervening states, especially in situations, where military
intervention has taken place.
Furthermore, the ‘right to intervene’ is effectively replaced by the

‘responsibility to act’, in its preventive or reactive scope, in order to
protect people from harm. This new approach also marks a shift in
the traditional international practice, which largely focused on
favouring the interests of the state, and promotes a human-rights-
oriented approach to state sovereignty, where the welfare of
individuals receives paramount attention.
R2P forms an example of a ‘broader systemic shift in international

law, namely, a growing tendency to recognize that the principle of
state sovereignty finds its limits in the protection of “human
security”’ (Stahn, 2007). As Kofi Annan notes:
State sovereignty, in its most basic sense, is being redefined—not

least by the forces of globalisation and international co-operation.
States are now widely understood to be instruments at the service
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of their peoples, and not vice versa. At the same time individual
sovereignty—by which I mean the fundamental freedom of each
individual, enshrined in the charter of the UN and subsequent
international treaties—has been enhanced by a renewed and
spreading consciousness of individual rights. When we read the
charter today, we are more than ever conscious that its aim is to
protect individual human beings, not to protect those who abuse
them.
(Annan, 1999)
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Conclusion
In this free OpenLearn course you have learned about the
international legal framework which regulates the use of force by
states. You have also studied the basic rules of IHL, which
regulates conduct during armed conflicts.
By now, you should have an understanding of what humanitarian

intervention is and why it is a controversial concept. Hopefully,
throughout the study of this course you have formed your own
critical opinion about some of the core problematic areas in
contemporary international relations, such as humanitarian
intervention, R2P, the use of force by non-state actors and the
continuing challenge of implementation of IHL in time of war.
This OpenLearn course is an adapted extract from the Open

University course W821 Exploring the boundaries of
international law.
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References
Alvarez, J. E. (2008) ‘The schizophrenias of R2P’ in Alston, P. and
MacDonald, E. (eds) Human Rights, Intervention, and the
Use of Force, Oxford, Oxford University Press.
Annan, K. (1999) ‘Two concepts of sovereignty’ [Online], The

Economist. Available at http://www.economist.com/node/324795
(Accessed 3 January 2013).
Annan, K. (2000) ‘We the Peoples: the role of the United Nations in
the twenty-first century’, report of the Secretary-General of the UN,
UN Doc. A/54/2000.
BBC (2012) Timeline: Siege of Srebrenica [Online], BBC News

Europe. Available at http://www.bbc.co.uk/news/world-europe-
18101028 (Accessed 2 January 2013).
Cassese, A. (1999) ‘Ex iniuria ius oritur: are we moving towards

international legitimation of forcible humanitarian countermeasures
in the world community?’, European Journal of International Law,
vol. 10, no. 1, pp. 23–30.
Chomsky, N. (1994) ‘Humanitarian Intervention’ [Online], Boston

Review, January. Available at
http://bostonreview.net/BR18.6/chomsky.html (Accessed 2 January
2013).
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Dinstein, Y. (2011) War, Aggression and Self-Defence, New
York, Cambridge University Press.
Douzinas, C. (2000) The End of Human Rights,

Oxford/Portland, Hart Publishing.
Von Elbe J. (1939) ‘The Evolution of the Concept of the Just War in
International Law’, American Journal of International Law, vol.
33, no. 4, pp. 665–88.
Godec, S. T. (2010) ‘Between rhetoric and reality: exploring the

impact of humanitarian intervention upon sexual violence- post-
conflict sex trafficking in Kosovo’, International Review of the
Red Cross, vol. 92, no. 877, pp. 235–58.
Holzgrefe, J. L. (2003) ‘The humanitarian intervention debate’, in

Holzgrefe, J.L. and Keohane, R. O. (eds) Humanitarian
Intervention: Ethical, Legal and Political Dilemmas,
Cambridge, Cambridge University Press.
ICISS (2001) The Responsibility to Protect, Report of the

International Commission on Intervention and State Sovereignty,
Ottawa, International Development Research Centre.
Lauterpacht, H. (1952) ‘The Problem of the Revision of the Law of

War’, British Yearbook of International Law, vol. 29, pp. 360–
82.
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Reichberg, G. M., Syse, H. and Begby, E. (2006) The Ethics of
War, Oxford, Blackwell Publishing.
Van Schaack, B. (2011) ‘The Crime of Aggression and

Humanitarian Intervention on Behalf of Women’, International
Criminal Law Review, vol. 11, no. 3, pp. 477-93.
Tesón, F. (2003) ‘The liberal case for humanitarian intervention’ in

Holzgrefe, J.L. and Keohane, R. O. (eds) Humanitarian
Intervention: Ethical, Legal and Political Dilemmas,
Cambridge, Cambridge University Press.
UN (2005) ‘Report of the International Commission of Inquiry on

Darfur to the United Nations Secretary-General’ [Online], Geneva,
United Nations. Available at
http://www.un.org/News/dh/sudan/com_inq_darfur.pdf (Accessed 3
January 2013).
US Government (2002) The National Security Strategy of the

United States of America [Online]. Available at
http://georgewbush-whitehouse.archives.gov/nsc/nss/2002/
(Accessed 2 January 2012).
Webster, D. and Fox, H. S. (1857) ‘Correspondence between

Great Britain and the United States, respecting the Arrest and
Imprisonment of Mr. McLeod, for the Destruction of the steamboat
Caroline – March, April 1841’ British and Foreign State Papers
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1840–1841, vol. 29, pp. 1126–1142 [Online]. Available at
http://heinonline.org.libezproxy.open.ac.uk/HOL/Page?
men_tab=srchresults&handle=hein.cow/bfsprs0029&size=2&collec
tion=cow&set_as_cursor=&id=1146 (Accessed 2 January 2013).
Cases:
USA
Case of the steamer Caroline 29 Brit & For St Papers.
Other jurisdictions
ICJ:
Armed Activities on the Territory of the Congo (Democratic

Republic of the Congo v Uganda) ICJ Rep 2005
Legal Consequences of the Construction of a Wall in the

Occupied Palestinian Territory Advisory Opinion ICJ Rep 2004
Legality of the Threat or Use of Nuclear Weapons Advisory

Opinion ICJ Rep 1996
Military and Paramilitary Activities in and against

Nicaragua (Nicaragua v United States of America) ICJ Rep
1986.
Legislation:
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Treaties and conventions
Geneva Convention 1864
Hague Conventions 1899 and 1907
Covenant of the League of Nations 1919
Kellogg–Briand Pact 1928
UN Charter 1945
Geneva Conventions I–IV 1949
Additional Protocols I and II to the Geneva Conventions 1977
Additional Protocol III to the Geneva Conventions 2005.
Resolutions:
United Nations
UN Security Council (UNSC):
UNSC Res 1325 of 31 October 2000.
UNSC Res 1373 of 28 September 2001.
UNSC Res 1820 of 19 June 2008.
UNSC Res 1973 of 17 March 2011.
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Further reading
If you found the subject matter of this unit interesting, here are
some further resources which you may find of interest.
BBC (2011) Rwanda: How the genocide happened, BBC

News Africa.
BBC Timeline – The conflict in the former Yugoslavia.
Byers, M. (2002) ‘Terrorism, the Use of Force and International

Law after 11 September’, International and Comparative Law
Quarterly, vol. 51, no. 2, pp. 401–14.
Caroline Case - the complete text of the original diplomatic

correspondence between the British Government and the
US Secretary of State .
Cassese, A. (2005) International law, Chapter 18, Oxford

University Press.
Cassese, A. ‘Terrorism is Also Disrupting Some Crucial Legal

Categories of International Law’, European Journal of
International Law, vol. 12, no. 5, pp. 993–1001.
Charlesworth, H. (1984–7) ‘Customary International Law and the

Nicaragua Case’, Australian Year Book of International Law,
vol. 11, no. 1, pp. 1–32.
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Chinkin, C. (1988–9) ‘A Gendered Perspective to the International
Use of Force’, Australian Year Book of International Law vol.
12, pp. 279–93.
Chomsky, N. (2011) ‘Dilemmas in humanitarian

intervention’, Lecture, Williams College, 22 September.
Drumbl, M., Reisman, W. M., Jinks, D., Dinstein, Y. and Glennon,

M. J. (2003) ‘Self-defense in an age of terrorism’, Proceedings of
the Annual Meeting (American Society of International
Law), vol. 97, pp. 141–152.
European Journal of International Law blog (useful for up-to-

date commentary on recent developments in international law).
Full text of Geneva Conventions and Additional Protocols.
Human Rights Watch (1999) Leave None to Tell the Story:

Genocide in Rwanda.
ICISS (2001) The Responsibility to Protect, Report of the

International Commission on Intervention and State
Sovereignty, Ottawa, International Development Research
Centre.
ICRC CIHL database.
For commentary on IHL and recent developments see:

International Review of the Red Cross.
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Milanovič, M. (2010) ‘Self-Defence and Non-State Actors:
Indeterminacy and the Jus ad Bellum’ [online], EJIL: Talk!.
Nanda, V. P., Muther, T.F. and Eckhert, A.E. (1997) ‘Tragedies in

Somalia, Yugoslavia, Haiti, Rwanda and Liberia – Revisiting the
Validity of Humanitarian Intervention under International Law – Part
II’, Denver Journal of International Law and Policy, vol. 26,
no. 5, pp. 827–70.
Reisman, M. (2007) ‘The Past and Future of the Claim of Pre-

emptive Self-Defence’, American Journal of International Law
vol. 100, no. 3, pp. 525–50.
Rodley, N. and Cali, B. (2007) ‘Revisiting Kosovo: Humanitarian

Intervention on the Fault-lines of International Law’, Human
Rights Law Review , vol. 7, no. 2, pp. 275–297.
Rogers, A.P.V. (2004) ‘Humanitarian Intervention and International

Law’, Harvard Journal of Law and Public Policy, vol. 27, no. 4,
pp. 725–36.
Jennings, R. Y. (1938) ‘The Caroline and McLeod Cases’,

American Journal of International Law vol. 32, no. 1, pp. 82–
99.
Shah, N. A. (2007) ‘Self-defence, Anticipatory Self-defence and

Pre-emption: International Law’s Response to Terrorism’, Journal
of Conflict & Security Law, vol. 12, no. 1, pp. 95–126.
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Tesón, F. (2011) ‘Humanitarian Intervention: Loose Ends’, Journal
of Military Ethics, vol. 10, no. 3, pp. 192–212.
Trapp, K. (2007)‘Back to Basics: Necessity, Proportionality, and the

Right of Self-Defence against Non-State Terrorist Actors’,
International and Comparative Law Quarterly, vol. 56, no. 1,
pp. 141–56.
UN’s response to terrorism: further information.
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Acknowledgements
This free course was written by Olga Jurasz.
Except for third party materials and otherwise stated (see terms
and conditions), this content is made available under a Creative
Commons Attribution-NonCommercial-ShareAlike 4.0
Licence.
The material acknowledged below is Proprietary and used under

licence (not subject to Creative Commons Licence). Grateful
acknowledgement is made to the following sources for permission
to reproduce material in this course:
Images
Course image: ©iStockphoto.com/skegbydave.
Figure 1: epa european pressphoto agency b. v./Alamy.
Figure 5: Sean Gallup/Getty Images.
Figure 6: Courtesy of Amnesty International.
Figure 7: © United Nations. This file is licensed under the Creative

Commons Attribution-Noncommercial-NoDerivatives Licence
http://creativecommons.org/licenses/by-nc-nd/3.0/.
Media
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Activity 2: International humanitarian law: a universal code © ICRC
2009
http://www.icrc.org/eng/resources/documents/audiovisuals/video/0
0981-humanitarian-law-universal-code-video-2009.htm.
Every effort has been made to contact copyright owners. If any

have been inadvertently overlooked, the publishers will be pleased
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Activity 1
Comment
All of the above texts comment generally on the application of the
‘right to self-defence’ in international law and comment on the
meaning of an ‘armed attack’ (see for example para.195 of the
Nicaragua Case).
It is a good idea, if you can find the time, to read the other parts of
this decision, as it provides a useful context to your studies.
Back to Session 1 Activity 1
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Activity 2
Comment
In considering these issues, you may find it helpful to watch the
following short film from the International Committee of the Red
Cross: International Humanitarian Law: A Universal Code. It
is approximately 13 minutes long.
Video content is not available in this format.
View transcript - Uncaptioned interactive content
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Activity 3
Comment
This activity is designed not only to test your understanding of the
rules of IHL, but also your ability to apply it to particular situations.
Importantly, the exercise highlights one of the main challenges to
the operation of the rules of IHL, namely their implementation
during armed conflict by the actors involved. You should get a taste
of the complexity of the decisions which are made in wartime.
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Activity 4
Comment
Rape and other forms of sexual violence have been used as a
weapon of war for millennia. The aim of using sexual violence in
conflict is to victimise women and also to assert domination over
the enemy. Furthermore, it is a psychological wartime tactic, which
purports to attack and weaken the entire community to which the
victim belongs. From a socio-cultural perspective, sexual violence
is used to assert specific political goals by means of humiliation,
degradation and the terrorisation of a particular social group.
The report describes several situations involving the use of rape

and other forms of sexual violence during the civil war in Darfur.
The use of sexual violence in armed conflict (both internal and
international) is explicitly prohibited by IHL and this rule is binding
on all parties to armed conflict. In the context of an NIAC,
Common Article 3 of the Geneva Conventions prohibits ‘violence to
life and person, in particular [...] cruel treatment and torture’ and
‘outrages upon personal dignity, in particular humiliating and
degrading treatment’. Although Sudan is not a party to GC AP II,
the customary rules of IHL, including the prohibition of the use of
sexual violence, are applicable and fully binding on those involved
in armed conflict.
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All parties are bound by the core principles of IHL, especially the
principle of distinction (see para. 339 of the report) and the
principle of differentiation. Furthermore, international law prohibits
and criminalizes sexual violence, in particular rape as a war crime
and/or a crime against humanity. The use of sexual violence as a
weapon of war has been condemned on an international level (UN
Security Council Resolutions 1325 of 31 October 2000 and 1820 of
19 June 2008) and numerous calls have been made to stop this
practice.
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Activity 5
Untitled part
Comment
You could start your arguments from an analysis of the differences
between the legal justification for the use of force in self-defence
and humanitarian intervention. Look again at the rules of jus ad
bellum – can they be applied to humanitarian intervention? Are
there any irreconcilable differences between the two acts (self-
defence and humanitarian intervention), which would determine
their different legal regulation?
Back to Session 3 Part 1
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Figure 1 Protesting in Libya, 2011

Description
Figure 1 is a photo of Libyans protesting against the oppressive rule of Colonel
Muammar Gaddafi; it shows a densely packed crowd of people many of whom are
waving flags.
Back to Session 1 Figure 1
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Figure 2 The destruction of the

Caroline
Description
Figure 2 shows a painting depicting the destruction of an American vessel, The
Caroline.
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Figure 3 The three emblems of the

ICRC: (a) red cross; (b) red
crescent; (c) red crystal
Description
Figure 3 is a drawing showing the three emblems of the ICRC: a red cross, formed of
an intersecting vertical line and horizontal line; a red crescent, formed of a left-side
half circle, with tapering ends; a red crystal formed of a four-sided diamond shape that
is empty in the centre.
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Figure 4 The two legal arms of IHL

Description
Figure 4 is a diagram showing the distinction between the two branches of IHL: the
Law of the Hague and the Law of Geneva. The Law of the Hague description reads:
‘Contains the rights and obligations of belligerents during the conduct of military
operations (The Hague conventions 1899 and 1907)’. The Law of Geneva description
reads: ‘Designed to protect those, who are no longer involved in fighting but also
those, who do not take part in hostilities (civilians) (Geneva Conventions 1-4 1949
and Additional Protocols I and II’.
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Figure 5 Preparation for burial of

some of the Srebrenica victims
Description
Figure 5 is a photo of coffins covered with green fabric and a weeping woman
kneeling beside them.
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Figure 6 ‘Rape is cheaper than

bullets’, a poster advertising
campaign launched by Amnesty
International to stop the use of
sexual violence as a weapon of
war
Description
Figure 6 shows an Amnesty International poster. It depicts a bullet with ‘Rape is
cheaper than bullets’ written in large text above it. Below, in smaller text, are the
words: ‘In conflict zones around the world, military commanders are using rape to
terrorise, humiliate and demoralise whole communities. Amnesty International is
committed to stopping the use of rape as a weapon of war.’
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Figure 7 UN Peacekeeping forces

Description
Figure 7 is a photo of an armoured military vehicle painted in the UN white livery
with the UN initials displayed clearly. It is seen driving on a rough, debris-strewn
track in a semi-built up area.
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Uncaptioned interactive content

Transcript
Narrator:
It’s important to know international humanitarian law, but it’s even more important to
obey it and make sure that others obey it as well. In fact, this is a matter of life and
death. People have been waging war since time immemorial. When an armed conflict
breaks out, the law of the jungle is paramount, and civilization yields to brutality and
chaos. War not only destroys precious objects and takes human lives, it wrecks the
fabric of society. Everything collapses. And the brunt is always borne by civilians.
Speaker 1:
I had a wonderful home – and I lost it. I’ve lost everything. [translation]
Narrator:
Rape, plunder, ethnic cleansing, massacres, and violence of every kind are the grim
spectre of war, blood-spattered and insatiable. And yet war does have limits, essential
limits. They are the rules of humanitarian law. Even children playing war know the
rules. These rules state how those taking part must behave, and require that the
adversary be respected. The early rules were a matter of custom, established by the
civilizations of the day. Other rules emerged from religious and ethical sources, such
as the Bible and the Koran. Modern humanitarian law was founded in 1864 at the
instigation of Henri Dunant and the International Committee of the Red Cross. It
enshrined one basic rule. Spare anyone on the battlefield who is not taking part in the
hostilities. Over time, the law’s scope broadened to protect other people affected by
conflict and to impose restrictions on the way war is waged. Neutral and independent,
the ICRC has a mandate from the international community to promote compliance
with humanitarian law. That law is specifically designed for wartime, whereas human
rights law covers all situations.
Philip Spoerri:
The ICRC has double responsibility. On the one hand, it has a responsibility to check
and identify where violations of international humanitarian law occur, and to
intervene on the level of the relevant authorities to counter these violations. And on
the other hand, the ICRC also has a role to clarify and develop international
humanitarian law when necessary.
Narrator:
The Geneva Conventions have today been accepted by every country on the planet.
These conventions and their three additional protocols contain a vast array of
provisions. Essentially, however, all their different articles are variations on just a few
fundamental rules. Spare civilians. Spare the wounded and sick. Spare people who are
detained. When the members of fighting forces fail to draw a distinction between the
civilian population and military objectives, the result is an endless, terrifying cycle of
reprisal and counter-reprisal. Civilians taking no direct part in the hostilities must be
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spared by the belligerents at all costs. Under no circumstances may they be targeted.
Failure to obey this fundamental rule too often forces people to flee their homes, with
all the pain and uncertainty this brings.
Reed Brody:
Unfortunately, what we’ve seen in the last couple of decades is that the main victims
of armed conflict are civilians, men, women, and children, that the idea of war
between two armies who line up on a battlefield and fight each other is long past.
Now we see that up to 90 per cent of the casualties of modern warfare are civilians.
Narrator:
Sparing the wounded and sick, whether civilian or military, whatever side they belong
to, is obligatory. As Henri Dunant always stressed, a wounded soldier is a non-
combatant. But sparing the lives of victims isn’t enough. First aiders, ambulance staff,
and hospitals must also be protected. The distinctive Red Cross and Red Crescent
emblems, and more recently the Red Crystal, exist to safeguard medical activities. But
ensuring that protection is, alas, difficult. Making sure that no harm comes to people
who are detained is an essential principle of the Geneva Conventions. Captured
combatants and civilians in the hands of the enemy are entitled to respect for their
lives and dignity. They must be protected from all forms of violence, especially
torture. They must also be able to maintain links with their families, and to enjoy
fundamental judicial guarantees. In war, you cannot do whatever you please.
Humanitarian law bans the use of weapons that are indiscriminate, or cause excessive
suffering. After a long campaign, anti-personnel mines, which go on maiming and
killing long after the last shot has been fired, were finally banned by the Ottawa
Convention of 1997. Today, humanitarian concerns are focusing on cluster weapons.
But even if there is progress towards banning cluster munitions, what even more
insidious weapons may appear tomorrow? Serious violations of the law can lurk
behind expressions such as ‘surgical strikes’ and ‘collateral damage’. The warring
parties must take all possible precautions to confine their attacks to military
objectives, and to forgo operations that could cause excessive incidental civilian
losses. The principles of distinction, proportionality, and precaution are extremely
basic, but sadly not always respected. Since the 11th of September, 2001, there’s been
a polarisation in international affairs, and today’s world has many new tensions.
Narrator:
Both terrorist networks and programmes to fight those networks have destabilised
entire regions. The rules of humanitarian law apply to new forms of conflict as they
arise, and provide a basis for meeting today’s challenges.
Mary:
In the beginning all I wanted to do was kill the people who had killed my father. And
I would have done that but the army made me accept the rules. I had to accept that.
[translation]
Narrator:
The validity of humanitarian law is sometimes questioned by this or that political or
military leader. And when it isn’t being totally flouted, the law is often poorly
implemented, or it is quite simply unknown to those who are supposed to obey it. It’s
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important to make all those engaged in armed conflict aware of their responsibilities.
These parties naturally include states, but also other entities. The rules of war apply to
everyone. There are no exceptions. Conflict is not the preserve of the states. Weapons
are also wielded by rebels, and also these days by private security companies, whose
frequent failure to comply with the law is a serious problem. But little can get
accomplished if there is no contact with the groups concerned.
Benjamin Sawyerr:
It is very important that the ICRC should put in more effort to speak to them as soon
as they have been identified, go into their camps, and try to educate them on the law
of armed conflict.
Narrator:
Ignorance of humanitarian law is something that must be fought. If people don’t even
know the rules they’re supposed to obey, compliance with the law is impossible.
Speaker 3:
These rules are taken from international conventions that your own country has
signed. Everybody has a right to be cared for when he or she is wounded.
Narrator:
If humanitarian law is to be respected, then every state must incorporate its content
into its own law and military doctrine.
Elizabeth Cubias:
We started working in 1997 promoting knowledge of international humanitarian law
and striving to ensure its implementation we want to prevent the errors and horrors
committed in wartime. So our work in the future- orientated. Its up to others to
concern themselves with what happened during the war. [translation]
Narrator:
The law has to punish those who violate it. Without penalties for non-compliance,
how can humanitarian law be effective? A person suspected of having committed or
ordered grave breaches of the Geneva Conventions can, whatever his nationality, be
prosecuted either by the national courts of any country or by the international court.
That court, the International Criminal Court, is based in The Hague. It’s an
independent standing body before which individuals accused of the most serious acts,
genocide, war crimes, and crimes against humanity, are tried. Over 100 countries have
ratified the statute of the International Criminal Court, but this is nowhere near
enough.
Philip Spoerri:
International criminal justice has an important function to end impunity. The tribunals
have a very important dissuasive function. I wish, however, to point out that we are
just at the beginning of a process. Lots of progress has been made over the past 10, 20
years in developing international criminal law and international justice. However, we
are just at the beginning of the journey. There’s still a way to go before we have a
system at the national and international level that counters acts of barbarism
amounting to international crimes.
Narrator:
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The rules of humanitarian law are of capital importance, and they are effective. When
respected, they safeguard civilization as a whole. That is why it is vital for each of us
to embrace and apply those rules. Despite all the strains on the system, humanitarian
law is a reality. And it is capable of protecting anyone made vulnerable by war.
Back to Session 2 MediaContent 1
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The Use of Force in International Law

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The use of force in international law

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About this free course

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 1 History of the law on the use of force

 1.2 The use of force authorised by the UN

 1.3 The use of force in self-defence

 1.4 Self-defence against non-state actors

 2 The law of armed conflict

 2.2 The main principles of IHL

 2.3 Protection of civilians

 3 Humanitarian intervention and the

 3.2 The dilemma of intervention

 3.3 Beyond humanitarian intervention:

 3.4 Responsibility to protect

Page 6 of 93 9th February 2017

Page 7 of 93 9th February 2017

The prohibition of the use of force and the principle of non-

By engaging in online activities and considering the real scenarios

Page 8 of 93 9th February 2017

This OpenLearn course is an adapted extract from the Open

Page 9 of 93 9th February 2017

 explain the rules governing the law on the use of force

Page 10 of 93 9th February 2017

1 History of the law on the use of force

Roman law of war and peace

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(Reichberg et al., 2006, pp. 47–8)

The doctrine of ‘just war’ was further influenced by Christian

1. it should be waged by a sovereign authority

Together with the rise of independent states in Europe, the

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1.1 The post-1945 legal framework

prevention and removal of threats to the peace, [...] the

Therefore, as a general rule of international law, the use of force is

Box 1 The illegality of the use of force

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 Military and Paramilitary Activities in and

The UN Charter further provides that:

All Members shall refrain in their international relations from the

(Article 2(4) UN Charter)

As you may have noticed from the wording of Article 2(4),