International Law and Violence
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Author: Marnie Lloydd
§ 12 Peaceful Settlement of Disputes;
§ 14 Law of Armed Conflict
Learning objectives: This chapter introduces students to possible avenues for thinking about the contested relationship between violence and international law. While violence can take many forms, this chapter focuses on two examples related to collective armed force: the use of force (jus ad bellum) and the law of armed conflict of international humanitarian law (jus in bello). By highlighting the tensions inherent within the international legal system's acceptance of violence as necessary to counter violence and insecurity, the chapter synthesises different thinking related to how one could understand the relationship between violence and international law.
A. Introduction: The conundrum of violence and protection from violenceEdit
Significant parts of international law are concerned with preventing organised armed violence – saving “succeeding generations from the scourge of war”. A primary purpose of the established collective security system is precisely to “maintain international peace and security”. As part of such efforts, key instruments invoke peace, nonviolent approaches to contestation, caring for others and acting with respect and friendliness towards other states.
Those aspirations for a peaceful and just world have not (yet) been achieved, whether through international law or by any other projects. To some extent, the violence that occurs is due to violations of international law. Yet, the system also authorises military force in the pursuit of peace and security, i.e. it understands violence as often being necessary precisely to protect people from other violence, whether in the form of self-defence of an attacked state or to respond responsibly to serious abuse of a population. Thus, the UN Charter also seeks to ensure that “armed force shall not be used, save in the common interest”. This means that it is not only violations of international law that result in violence. Rather, while compliance with international law does not require physical force, fully compliant actions can nevertheless be extremely violent and cause significant harm and suffering, even if undertaken in the perceived common interest and ‘greater good’. Hamzić explains how the Security Council’s “insistence on international legal enforcement of global peace, justice and security, reveal[s] all too plainly the violent nature of such purportedly non-violent acts”.
Law and violence are also tightly interconnected in the sense that, today, the waging of war has become highly juridified, with law a crucial and inescapable element, functioning as both “a tool of restraint or of empowerment […] The waging of war and the doing of law are inextricably bound”.
Thinking about violence, protection from violence, as well as non-violence, presents an overarching question for international law. How should one make sense of the complex and enduring relationship between international law and violence? Does law protect people from violence or legitimise violence against them? How should we understand that within the current international legal system, violence is sometimes considered necessary in order to protect people from violence? Can we do harm by doing good? Perhaps more troubling, can we do good by doing harm? How should we understand why legal frameworks such as international humanitarian law opt for restraining armed conflict rather than prohibiting it? What room is there for pacifism in international law?
Thinkers in law, political science, international relations, moral philosophy and other disciplines have long thought about such questions. This chapter explores the ways in which aspirations of reducing and preventing harm and violence are demonstrated within international law, but also the more complicated idea that the law pulls simultaneously in the other direction since it authorises violence; indeed, to take the idea further, that law can only operate because of violence. The following sections discuss certain different avenues for thinking about the relationship between violence and international law, with a particular focus on the conundrum within the current international legal system that violence is at times considered necessary to protect people from violence. Selected key thinking on these questions from scholars, practitioners and institutions are discussed, related specifically to jus ad bellum, jus in bello, together with ideas from humanitarianism more generally and nonviolent and pacifist approaches.
The chapter suggests that it becomes insufficiently nuanced to state that law and war are of two different worlds – that in war, law falls silent (inter arma enim silent leges) or that war breaks out only when law fails. Rather, the tensions concerning violence are inherent to international law. At the same time, those tensions are likewise present in critiques of violence, and nonviolent approaches such as the humanitarian edict to ‘first, do no harm’ or the concept of ‘ahimsa’ from Hindu and Buddhist thinking. This suggests that there is value in seeking a more nuanced and historically contextual understanding. Rather than only working out what, in one’s opinion, the law says, it becomes important to think about legal argument – who is speaking, to whom, for whom, in what context and with what framing of the stakes of the debate?
B. The notion of ‘violence’Edit
Before turning to different thinking on these questions, it is worth briefly considering what is meant by ‘violence’. Despite this chapter focusing on collective armed violence and the humanitarian imperative, it is acknowledged that exploring the relationship(s) between international law and violence is, admittedly, a potentially wide-ranging endeavour since there is no reason 'harm' and even 'violence' are limited to exceptional uses of physical force such as war or terrorism, and direct, immediately visible consequences. Harm and violence can be structural; part of many people’s everyday experiences. Imperialism, colonialism, discrimination leading to exploitation or exclusion, economic or political inequalities, activities that degrade natural resources and the environment, injustice and epistemic violence, and different states' unequal levels of voice and power within the international legal order more broadly, could similarly be considered forms of violence.
I note that certain non-military threats are also considered threats to international peace and security which might potentially require an armed response and threats to the security of groups of people (as opposed to State security) have justified armed operations in response. Moreover, several other global issues are talked about in this way, such as combating the crisis of the COVID-19 pandemic or the ‘war on drugs’.
For completeness, I note that the term ‘violence’ is not defined in international law and is not used in the United Nations Charter, nor the Friendly Relations Declaration. It does appear in the Geneva Conventions – Common Article 3, for example, refers to ‘violence to life and person’ – as well as in certain instruments and statements of international bodies, including to differentiate situations involving “sporadic acts of violence” from those of armed conflict to which international humanitarian law applies. It is used most often in relation to violence against women or children, and sexual and gender-based violence, as well as regarding incitement to violence. Otherwise, violence is often described more narrowly through specific offences such as murder or killing, extermination, torture, enforced disappearance, bodily or mental harm, or, through terms that have been defined or have developed specific meanings such as ‘attack’, ‘armed attack’, ‘use of force’ and ‘aggression’.
C. The Paradox of Violence as Problem and SolutionEdit
A fundamental rule set out in Article 2(4) of the United Nations Charter prohibits the threat or use of force by States. This is supported by the requirement that states settle their international disputes by peaceful means. Bailliet and O’Connor note that the emphasis of the Charter’s articles on the pacific settlement of disputes “lies not in resorting to force to establish peace, but in preserving and perpetuating the peace one has. The obligation is thus first and foremost to maintain peace through the resolution of disputes peacefully”. In other words, a preventive approach in order to safeguard peace. More broadly, parts of international law seek to continually improve the global situation, protecting individuals from forms of 'violence' in its broadest meaning: ensuring people’s fundamental rights can be enjoyed, offering international protection to those who do not enjoy the protection of their state, requiring accountability for abuses committed and so forth.
Indeed, many students become interested to learn about international law or embark on professional work related to international law as an aspirational vehicle for “making the world a better place”, that is, because international law is understood to be doing good, or at least working towards good, or at the very least, placing required restraint on the worst that humanity has to offer. While aggression and atrocity crimes still occur, key prohibitions of international law, such as the prohibition on the use of agressive force or the murder of detainees, are respected by the majority of countries the majority of the time. This is significant.
Neverthless, as set out in the introduction, the aspirations for peace, justice and equality are not yet met. Fundamental principles of international law continue to be violated regularly, and in violent ways. The lack of compliance with international law – aggression, torture, the use of prohibited weapons, extrajudicial killings, enforced disappearance – is of concern precisely because it can cause significant harm and suffering. International lawyers may indeed feel some cynicism towards day-to-day practices such as the drafting of resolutions or submissions to treaty bodies which then effect no real change or even end up worsening a situation or muddying the law. Koskenniemi has described the “recurrent enthusiasms gone sour” and Alexander an optimism that “was soon tinged with a deep unease”. Still, these forms of international legal work do grapple with the question of ‘international law and violence’ in their own way. Whether it is working to ban anti-personal landmines, improve migrant workers’ rights or reduce racial discrimination, such efforts recognise harms and violence in the world and a role that law has in it.
More confounding though, peace is often paired with security in the logic of the international legal system. Despite Bailliet and O’Connor’s description of the Charter’s preventive approach that seeks to perpetuate peace noted above, this indicates in fact that ‘peace’ in the UN Charter is to be understood primarily in its narrow version of security/an absence of war rather than any broader conception of “nourishing life”; that resolving violent conflict is its central concern. Since peace requires security, it is to be regained by combating insecurity. The international legal system’s preoccupation with peace and security therefore has two faces: as well as seeking to prevent war and violence, it also allows and regulates certain instances of force. Most obviously, article 51 of Charter protects a state’s “inherent right of individual or collective self-defence if an armed attack occurs” and the UN Security Council may authorise forcible measures where a threat to international peace and security has been determined. In a similar vein, once an armed conflict has begun, international humanitarian law works to restrain violence and reduce its humanitarian consequences, but also provides a privilege for violence to be used by certain armed actors. Thus, while some forms of violence, such as torture or genocide, are prohibited in all circumstances, other forms are accepted. The law seeks to restrain or regulate but does not prohibit these acts of violence. In this sense, ‘protection’ and ‘caring’ in the international legal system – whether of self or others – are not understood as always necessitating a peaceful approach – despite the “untold sorrow” from the “scourge of war”, the international legal system is not pacifist. Marc Weller explains, “[w]ars are abolished. Yet, the use of force continues to exist, although it is to be employed as a means of guaranteeing a warless world.”
This presents a paradox: within this system, violence is the problem but also the solution. To protect what is held dear within the system, it is accepted that, at times, the very things that are held dear need to be transgressed. One could perhaps pretend, then, that if they are part of the solution, certain kinds of violence should not be considered violence at all; in other words, that there could be legitimate, humanitarian, emancipatory or even peace-loving violence, as contrasted with illegitimate or violent violence. Yet, such depictions do not sit easily.
One common way to think about this “necessary evil” is through a progress narrative. International law is clearly not perfect nor entirely successful, but much has been achieved from earlier periods. Key instruments of international law such as the UN Charter or the 1949 Geneva Conventions are seen as significant milestones marking this progressive achievement. With continued dogged development of the law, and greater political will for its respect and enforcement, there could be even further progress towards the utopia of peace.
Somewhat relatedly, some understand that if states and other armed actors would just stop violating international law, the need for self-defence or humanitarian interventions would end. Maintaining a peace that is already in place would logically be more straightforward for the Security Council than reaching that peace from a situation of conflict and insecurity. We see this latter logic reflected in the 1941 Atlantic Charter between the United States and the United Kingdom. Its last provision states:
[...] all of the nations of the world, for realistic as well as spiritual reasons must come to the abandonment of the use of force. Since no future peace can be maintained if land, sea or air armaments continue to be employed by nations which threaten, or may threaten, aggression outside of their frontiers, they believe, pending the establishment of a wider and permanent system of general security, that the disarmament of such nations is essential. [...]
However, before that, the sixth paragraph reads “after the final destruction of the Nazi tyranny, they hope to see established a peace which will afford to all nations the means of dwelling in safety within their own boundaries.” In other words, just one more battle, and then we will lay down our arms. This reflects the lived reality of the devastation caused by the World Wars which demanded a Security Council of powerful states that could prevent such wars reoccurring. Yet, it also illustrates the conundrum that continues to present itself when demands are made that certain states must disarm, while others must be allowed to retain their arms in order to defend themselves or others.
When international law is called upon aspirationally, it can be understood as working to distinguish lawful from unlawful conduct or circumstances – to define and categorise them. Even if one acknowledges the politics behind such categorisations, one understanding is that the existence of the law acts – or at least ideally it would act – as a restraint on belligerents, stepping in to hold them back where their actions would otherwise breach the agreed line. Whether one is inclined to take a Hobbesian view of human society’s disposition towards competition and war or to believe that humans are loving and non-violent at heart, within this logic, law operates to protect from war; law and violence become two different worlds. Thus, peace is the normal state of affairs, which is protected by international law and the system of collective security. And when law fails, war breaks out. While the system still has certain deficiencies, for some, it is the only “stable workhorse” available and the basic design of collective security may be more or less right; its functioning is underperforming primarily due to a lack of genuine willingness of states. We must be patient and committed, while we remain in the ‘not yet’ of peace and justice.
Other thinkers appear less willing to sit patiently in the “not yet” and view international law as having a more contested, even conspiratory, role in violence. In contrast to the above for instance, for Vanja Hamzić, law and violence are not of two different worlds rubbing up against each other, but are already “an old couple”. Regardless the durtion of the relationship, other thinkers note its ebbs and flows in different political contexts. For example, some perceive that the delegitimation of war from the twentieth century saw a relegitimation in the twenty-first or a revival of ‘just war’ framings. Others likewise saw problems with seemingly expanding powers to resort to force. Iain Scobbie, for instance, has commented regarding claims of force as lawful:
Given the recurrent use of the rhetoric of ‘self-defence’, especially collective self-defence, which has been invoked to justify the extraterritorial use of force by powerful States against non-State actors and individuals situated in weaker States, is this an attempt to redefine the ambit of collective security in a way which secures some States’ freedom of action but which erodes the settled contours of the prohibition of the use of force in the territory of another State? Is this an attempt to defend the pluralism encompassed in the ideology of liberal internationalism against the absolute certainties of fundamentalism, whether ideological, theological or political, which expresses disaffection with the perceived values and structure of the current international system, by using, rather than by refraining from using, force? If so, can we claim that this is really ‘progress’?”
Appearing even more disenchanted, Dianne Otto has posed the question of “how law helps to reproduce the inevitability of the deadly, anthropocentric, imperial, neoliberal military-industrial-complex” and “whether there remain any remnants of opportunity in law” with which one might yet work if one wanted to imagine alternative notions of peace. In that dire description, international law certainly no longer sounds like an aspirational vehicle for “making the world a better place” with lack of political will and violations of its rules as its key deficiency, and committed patience what is required. Rather, the logic, practice and demonstrated interests of the entire system are being critiqued and challenged.
D. Assessing the lesser evil? The example of humanitarian intervention and the responsibility to protect (R2P)Edit
E. The example of international humanitarian lawEdit
F. Concluding ReflectionsEdit
Yet, international law’s preoccupation with peace and security has two faces: as well as seeking to prevent war and violence, the contemporary international legal system also allows and regulates certain instances of force. While some forms of violence, such as torture or genocide, are prohibited in all circumstances, other armed violence, such as the use of force between states or against an organised armed group, are accepted – the law seeks to restrain but does not prohibit this violence. More specifically, violence is often considered necessary precisely in order to protect people from other violence. Thinking about violence, protection from violence, as well as non-violence, is therefore an overarching question for intentional law.
To consider this overarching question, this section introduces selected key thinking on these conundrums from scholars, practitioners and institutions. International law seeks to prevent war and violence but by regulating it, also allows it. How should we understand this reality of the current international legal system that violence is sometimes considered necessary in order to protect people from violence, and that legal frameworks such as international humanitarian law opt for restraining armed conflict rather than prohibiting it? How should we understand this humanitarian impulse/imperative, and what room is there for pacifism in international law?
- This section will briefly use concrete examples from the law on the use of force, as well as the law of armed conflict (such as the 1999 NATO bombing of Serbia, airstrikes in Gaza, the principle of the responsibility to protect such as applied in the 2011 intervention in Libya, and robust peacekeeping mandates such as applied in Democratic Republic of Congo to discuss this question. (internal link to chapters on IHL, Use of force, possibly peaceful settlement of disputes, possibly history of IL/TWAIL)
- It will introduce the reader/student to key thinking on these issues from scholars, practitioners and institutions such as the ICRC, Martti Koskenniemi, Frederic Megret, David Kennedy and Samuel Moyn, possibly Anghie (oh my goodness, need some women and other scholars...)
- It will relate the underlying dilemma of seeking to balance military necessity with humanitarian protection to similar tensions inherent in other moral/ethical, philosophical and religious conceptions of violence and humanitarianism, in particular the ancient Indian concept of “Ahimsa” (non-violence or do no harm) which can likewise be understood/interpreted in different ways in terms of its resulting actions. Will note that 'do no harm' is also a basic tenet of liberal humanitarianism (B. Anderson).
- The section will argue and explore how such tensions regarding violence and humanitarianism are not unique to international law, but that international law exhibits those tensions that exist more generally in life and society and ways of understanding human relations. Can also link to notion that 'harm' or 'violence' is not necessarily only armed or physical violence (wars and interventions), but we could also think about imperialism, colonialism, discrimination, injustice, and different states' unequal levels of voice and power more generally - how IL both empowers and justifies/restricts (link to history/myths or eurocentrism chapters?)
- Summary I
- Summary II
- Helen Dexter, 'Peace and Violence', in Paul D. Williams and Matt McDonald, Security Studies: An Introduction 3rd ed. Vol. 1. (Milton: Routledge, 2018) 206-220.
- Martti Koskenniemi, 'The Lady Doth Protest Too Much - Kosovo, and the Turn to Ethics in International Law' (2002) 65(2) 170.
- Pål Wrange, ‘Protecting which peace for whom against what? A conceptual analysis of collective security’, in Cecilia M. Bailliet (ed), Research Handbook on International Law and Peace (Edward Elgar, 2020) 107.
- Dianne Otto,
- United Nations Charter, preamble.
- Vanja Hamzić, ‘International law as violence: Competing absences of the other’ in Dianne Otto (ed), Queering International Law: Possibilities, Alliances, Complication, Risks (Taylor & Francis, 2017) 77, at 79 (emphasis in original).
- Lawrence Douglas, Austin Sarat and Martha Merrill Umphrey, ‘Law and War: An Introduction’, in Sarat et al (eds) Law and War (Stanford University Press, 2014) 1, at 3-4.
- See, for example, regarding structural violence, Johan Galtung, ‘Violence, Peace and Peace Research’, (1969) 6(3) Journal of Peace Research 167 and discussing different forms and definitions of violence, Helen Dexter, 'Peace and Violence', in Paul D. Williams and Matt McDonald, Security Studies: An Introduction 3rd ed. Vol. 1. (Milton: Routledge, 2018) 206-220, at 207-212.
- Pål Wrange, ‘Protecting which peace for whom against what? A conceptual analysis of collective security’, in Cecilia M. Bailliet (ed), Research Handbook on International Law and Peace (Edward Elgar, 2020) 107 at 119, 121-23.
- Eliana Cusato ‘Beyond War Narratives: Laying Bare the Structural Violence of the Pandemic’ in Makane Moïse Mbengue and Jean D'Aspremont (eds) Crisis Narratives in International Law (Brill, 2022) 109-121.
- Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations, General Assembly resolution 2625 (XXV) of 24 October 1970.
- CA3. See also GC1, Arts. 12 and 18 regarding violence towards the wounded and sick; GCII, Art 12 prohibiting violence to wounded, sick or shipwrecked at sea; GCIII, Art. 13 regarding humane treatment of prisoners of war, and Art 93 regarding offences of prisoners of war which do not entail violence against life or limb; GCIV, Art 27, protection of protected persons against violence; API, Art 17 regarding violence towards the wounded, sick and shipwrecked, Art. 51 regarding violence the primary purpose of which is to spread terror among the civilian population, Art. 75 providing for fundamental guarantees; APII Art 4(2)(a) providing for fundamental guarantees, Art 13(2) regarding violence the primary purpose of which is to spread terror among the civilian population.
- Rome Statute of the International Criminal Court, 17 July 1998 (2187 UNTS 3), Arts. 8(2)(d), 8(2)(f); APII Art. 1(2).
- See, for example, Rome Statute, Arts. 7(1)(g), 36(8)(b), 42(9). 54(1)(b); Convention on the Rights of the Child, 20 November 1989 (999 UNTS 171), Art. 19(1) protecting children from ‘all forms of physical and mental violence’; United Nations Committee on the Elimination of Discrimination Against Women, General Recommendation No. 35: On Gender-based Violence Against Women, Updating General Recommendation No. 19, CEDAW/C/GC/35, 26 July 2017.
- ICCPR, Art. 20(2),
- API, Art. 49.
- UN Charter, Art. 51.
- UN Charter, Art. 2(4)
- General Assembly resolution 3314 (XXIX), Annex: Definition of Aggression, 14 December 1974
- United Nations Charter, art 2(4).
- United Nations Charter, art 2(3). See also art 1(1).
- Cecilia M. Bailliet and Simon O’Connor, ‘The good faith obligation to maintain international peace and security and the pacific settlement of disputes’ in Cecilia M. Bailliet (ed), Research Handbook on International Law and Peace (Edward Elgar, 2020) 83, at 85.
- Ibid, 105.
- See, for instance, Martti Koskeniemmi, ‘Between Commitment and Cynicism: Outline for a Theory of International Law as Practice’ in in D’Aspremont et al (eds) International Law as a Profession (Cambridge University Press, 2017, 38-66.
- Martti Koskeniemmi, ‘Between Commitment and Cynicism: Outline for a Theory of International Law as Practice’ in in D’Aspremont et al (eds) International Law as a Profession (Cambridge University Press, 2017, 38-66 at 48.
- Amanda Alexander, ‘The Ethics of Violence: Recent Literature on the Creation of the Contemporary Regime of Law and War’ (2021) Journal of Genocide Research 1-17, at 2.
- Dianne Otto, ‘rethinking “peace” in international law and politics from a queer feminist perspective’ (2020) 126 Feminist Review 19-38, at 26.
- Ibid; Marc Weller, ‘Use of Force’ in Oxford Handbook of International Organisations, 622 at 623. See also on negative and positive formulations of peace, Helen Dexter, 'Peace and Violence', in Paul D. Williams and Matt McDonald, Security Studies: An Introduction 3rd ed. Vol. 1. (Milton: Routledge, 2018) 206-220, at 212.
- At least, “until the Security Council has taken measures necessary to maintain international peace and security”. See United Nations Charter, art 51.
- United Nations Charter, art 42. See also art 53 regarding regional organisations.
- United Nations Charter, preamble.
- Marc Weller, ‘Use of Force’ in Oxford Handbook of International Organisations, 622 at 623.
- Helen Dexter, 'Peace and Violence', in Paul D. Williams and Matt McDonald, Security Studies: An Introduction 3rd ed. Vol. 1. (Milton: Routledge, 2018) 206-220, at 209; Darryl Li, ‘A Universal Enemy?: “Foreign Fighters” and Legal Regimes of Exclusion and Exemption under the “Global War on Terror”’ (2010) 41 Columbia Human Rights Law Review 355, at 373.
- See, for instance, Marc Weller, ‘Use of Force’ in Oxford Handbook of International Organisations, 622 at 625 regarding earlier debates about criteria for ‘just wars’.
- Art 24 of the UN Charter gives the Security Council the primary responsibility for the maintenance of international peace and security, although Art 42 allows the Security Council to take actions necessary to maintain or restore international peace and security.
- Marc Weller, ‘Use of Force’ in Oxford Handbook of International Organisations, 622 at 629.
- David Kennedy, ‘Lawfare and Warfare’ in James Crawford and Martti Koskenniemi (eds), The Cambridge Companion to International Law (Cambridge University Press, 2012) 158, at 158.
- Ibid at 642-43.
- Vanja Hamzić, ‘International law as violence: Competing absences of the other’ in Dianne Otto (ed), Queering International Law: Possibilities, Alliances, Complication, Risks (Taylor & Francis, 2017) 77, at 77.
- Martin Shaw, ‘Risk-Transfer Militarism, Small Massacres and the Historic Legitimacy of War’ (2002) 16(3) Intentional Relations 343, at 343: “War, it seems, is not the prerogative of international criminals, but the first resort of the righteous.” See also Helen Dexter, ‘The “New War” on Terror, Cosmopolitanism and the ‘Just War’ Revival (2008) 43(1) Government and Opposition 55.
- Iain Scobbie, ‘War’ in Jean d’Aspremont and Sahib Singh (eds) Concepts for International Law (Edward Elgar, 2019) 900, at 912 (citations omitted).
- Dianne Otto, ‘rethinking “peace” in international law and politics from a queer feminist perspective’ (2020) 126 Feminist Review 19-38, at 21.