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International Law and Violence

< Public International Law | Nature and Purpose of International Law
The latest reviewed version was checked on 18 March 2024. There are template/file changes awaiting review.


Author: Marnie Lloydd


Required knowledge: None

Learning objectives: Acknowledging that international law seeks to prevent violence but also accepts and regulates certain forms of violence; introducing avenues for critical reflection about the complex relationship between violence and international law.


A. INTRODUCTION

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A key aim of the international legal system is to protect future generations from the ‘scourge of war’.[1] International law therefore requires States to settle their international disputes by peaceful means and outlaws aggression between them.[2] Other rules place significant restraints on how wars may be fought; for example, not allowing civilians or hospitals to be targeted, to reduce war’s humanitarian consequences. Many students become interested in international law precisely because it is seen as an aspirational vehicle for ‘making the world a better place’.

Much has been achieved in suppressing the right to make war and restricting the means and methods of warfare.[3] Still, aspirations for a peaceful and just world have not (yet) been achieved. Partly, armed violence occurs in violation of international legal norms – the illegal invasion of a sovereign State, a terrorist attack on a market square, attacks against a particular ethnic group. However, armed violence is also undertaken in compliance with international law. Specifically, self-defence and collective security measures adopted by the UN Security Council (UNSC) are accepted within the system as a way to counter insecurity. Thus, there are important exceptions to the general norm against using force.[4] International law is not pacifist and its functioning as intended involves violence. Reflecting this, the preamble of the UN Charter sets out that ‘armed force shall not be used, save in the common interest’.

It may seem paradoxical that peace and security are sought through war and violence. Because violence can be oppressive but also potentially emancipatory, ‘[p]lacing limits around violence remains . . . one of the hardest challenges of the human condition’.[5] So, who gets to decide what is in the ‘common interest’ and how armed violence might be used ‘in the right way and for the right reasons’?[6] In their application of international law, different thinkers, actors, and traditions will have different readings of a situation and different legal, political, and moral judgements and arguments as to the values and interests to be prioritised. These priorities can change over time and context. The relevant norms and exceptions, and their application, are neither neutral or inevitable nor technical and universally agreed, but highly political and contested.[7]

B. WHAT IS MEANT BY 'VIOLENCE'?

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Exploring the relationship(s) between international law and violence is a potentially wide-ranging endeavour since there is no reason the term ‘violence’, and even more so ‘harm’, must be limited to armed force and its direct physical and psychological consequences. For example, the humanitarian consequences of armed conflict can also include knock-on effects such as displacement and the breakdown of essential infrastructure and services leading to increased sickness and death.[8] Importantly, violence could also be thought of as structural, a less visible part of many people’s everyday experiences of discrimination leading to injustice, exploitation or exclusion, economic or political inequalities, or activities that degrade the environment.[9] Moreover, such issues can contribute to conflict and outbreaks of violence.

Nevertheless, this chapter focuses on organised physical violence during armed conflict and discusses international law related to the use of force and the UN Charter (i.e. rules on starting or joining hostilities) and regulating those hostilities once they are underway (known as the law of armed conflict or international humanitarian law [IHL]).[10]

Within that narrower focus, the term ‘violence’ is not defined in international law but does appear in certain international instruments, most commonly related to acts committed against individuals, including violence against women or children, and sexual and gender-based violence.[11] Otherwise, acts of violence are often described through offences such as murder, extermination, torture, enforced disappearance, and bodily or mental harm, or through terms that have been defined or have developed specific meanings, such as ‘attack’, ‘armed attack’, and ‘aggression’.[12] Other language is broader, such as ‘the scourge of war’, ‘use of force’, ‘armed force’, and ‘threat to international peace and security’, referred to in the United Nations Charter.[13]

If ‘violence’ is hard to define, ‘war’, ‘peace’, and ‘security’ can be even more difficult. ‘Peace’ sometimes refers to the absence of war, and sometimes to a more expansive idea including also the achievement of social justice.[14] ‘Security’ often refers to State security but, like ‘peace’, has more recently also been thought of within the broader idea of ‘human security’.[15] Reflecting this, the UN Charter preamble expresses concern not only with international peace and security but human rights and social justice.

C. DISCUSSION: A COMPLEX AND CONTESTED RELATIONSHIP BETWEEN VIOLENCE AND INTERNATIONAL LAW

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I. THE EXAMPLE OF THE MILITARY INTERVENTION IN LIBYA 2011

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In February 2011, anti-government demonstrations started in the north-eastern city of Benghazi before spreading to other parts of Libya. Libya’s leader, Colonel Muammar al-Qadhafi, responded with military force against dissenters. Helped by some defections from the military, anti-government forces managed to take control of certain areas of eastern Libya. The situation escalated into an armed conflict between opposition forces and forces loyal to the al-Qadhafi regime.[16]

The UNSC quickly demanded an end to the violence, referred the situation to the International Criminal Court, and imposed an arms embargo and other sanctions on members of the Libyan regime.[17]

With the hostilities approaching the opposition stronghold, Benghazi, which the regime had reportedly threatened to attack with ‘no mercy’,[18] the UN Secretary-General expressed concern about the endangering of civilians should an assault on Benghazi occur.[19] Adopting Resolution 1973 on 17 March 2011, the UNSC reaffirmed its ‘strong commitment to the sovereignty, independence, territorial integrity and national unity’ of Libya. It also imposed a no-fly zone and authorised States ‘to take all necessary measures . . . to protect civilians and civilian populated areas under threat of attack’ in Libya.[20] ‘All necessary measures’ is a phrase used by the UNSC to include military force.

NATO member States rapidly initiated military operations on 19 March 2011. In addition to actions to protect civilians from the advancing Libyan government forces and to enforce the no-fly zone, those air operations subsequently directly supported the opposition forces. Intervention operations continued until October 2011, by which time al-Qadhafi had been killed, and a majority of States recognised the opposition National Transitional Council as Libya’s new interim government.

The years following the intervention proved difficult with deteriorating security and reignition of civil war between different Libyan factions in 2014, as well as a growing ISIS presence.[21] Following a 2020 ceasefire agreement, political instability, human rights abuses, and other violations have continued.[22]

II. CONTESTED NATURE OF ACHIEVING PEACE OR PROTECTION OF CIVILIANS THROUGH MILITARY FORCE

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Does the Libya 2011 example provoke any particular gut reaction from you?

Some commentators applauded that the UNSC had been able to react promptly to a humanitarian crisis, and that States were willing to take action.[23] This reflects how the promotion of fundamental freedoms and human rights, and the growing notion that mass atrocities within a State could threaten international peace and security, have strengthened the moral authority of arguments justifying armed responses to such threats as being in the common interest.[24] This more expansionist view has, in turn, impacted on what might be described as a more restrictive and universal holding to norms respecting sovereignty and non-intervention. Indeed, Resolution 1973 was the first time that the UNSC had recognised and put into action the so-called responsibility to protect (R2P), which authorised military force as an exception to the general prohibition on the use of force between States for the purpose of protecting individuals at risk where the State in question was not meeting that responsibility.[25] Accepting it might be an imperfect and rather ‘blunt instrument’ but perhaps the best we have in a bad situation,[26] and/or that learning from previous experiences might help ensure future operations do more good than harm,[27] many accept such interventions as the lesser evil because they are conducted in the hope of averting even greater suffering.[28] Regarding Libya, for example, reports indicated that NATO bombing killed 72 civilians but averted a potentially far larger massacre in Benghazi.[29]

Other commentators have expressed concern about the implementation and/or consequences of the intervention. Amongst criticisms is that the NATO intervention exceeded the UNSC’s authorisation in Resolution 1973 by actively supporting regime change, arguably turning the lawful intervention into an unlawful one.[30] This might be compared with the earlier situation in Kosovo where NATO controversially undertook an air campaign against Yugoslavia in 1999 without UNSC authorisation, with the operation subsequently being labelled as ‘illegal’ since it was unauthorised but ‘legitimate’ under the circumstances.[31] Relatedly, while not opposed to R2P, some commentators have examined whether in the particular case of Libya, required legal and ethical thresholds to justify intervention such as last resort, sufficiently serious situation, or purpose, were met.[32] The instability and civil war in the years following the Libya intervention, as well as an argument that NATO operations gave cover to violations committed by anti-regime forces, also led to critiques about ill judgement, the intervention worsening the situation, or, at least, that the international community inadequately supported Libya post-conflict.[33] Those same reasons contributed to arguments that the ‘disaster’ of Libya made it unlikely that similar humanitarian actions would be adopted in the future.[34]

Arguments about ‘mission creep’ were also made by those voicing a broader wariness of military operations undertaken for humanitarian and protective purposes. There is concern, including for many developing States, about seemingly expanding powers of such ‘muscular humanitarianism’[35] and the risks of exploitation by militarily powerful States.[36] Commentators have noted the discretion and selectivity in responses to situations considered crises.[37] For some, claims that norms justifying military action are universal ring rather hollow given the ‘lopsided global arrangements in which some forms of suffering are recognized while a great many more are not’.[38] This has led to accusations of Western leadership using international law ‘to target its enemies while protecting its friends’.[39] As David Kennedy has expressed,

one must imagine that claims to make war in the name of right will rarely sound sincere or seem persuasive to those who believe the truth lies elsewhere – who oppose the war, are disgusted by the tactic, or simply expect themselves to be maimed or killed.[40]

Relatedly, critical scholarship has pointed out how race, gender, and class continue to be implicated in the legal justifications made for intervention, replicating historical experiences of domination of the so-called Global South in the application of international law, including to curb emancipatory struggles.[41] While not always ruling out the need for military action in exceptional circumstances involving intentional attacks against civilians, some call for prudence and an overwhelming consensus of the international community before the resort to force.[42]

Finally, approaches based in pacifism or non-violence have long accompanied the development of international law and are seeing renewed interest.[43] For some, what is important is that the means used to counter ills such as insecurity or terrorism are ‘consistent with the changes we wish to bring about’.[44] On a practical level, some researchers argue that violent methods have been overused and have largely failed (e.g. to counter terror) while non-violent strategies have proven more successful.[45] Even those supporting R2P have reinforced the importance of preventing violence in preference to military responses once a crisis breaks out.[46]

Once in those crises, the dilemma often appears as one between action and inaction, where ‘doing something’ tends to be understood as a military response. Reflecting this, pacifist or non-violent philosophies have been labelled as overly idealistic and morally challenging, that remaining neutral or non-active implicates the acceptance of violence and might reinforce the dominant order.[47] Yet, nonviolent approaches do not equate with doing nothing and might still persuade or even be coercive.[48] Similarly, there is a vast range of different ways military operations to protect civilians could be undertaken.[49] Limiting the options to either intervening militarily or standing idly by arguably blinkers us to other possible responses, as well as to a situation’s historical and political context; for example, understanding better how the earlier involvement of other States and international institutions might have contributed to the situation at hand.[50] Some thus believe pacifist and non-violent approaches can open up spaces for alternative discussions, destabilising assumptions about militarism, and might have potential for being more global and inclusive than the current international system.[51]

III. CONTESTED NATURE OF CIVILIAN CASUALTIES DURING THE PROTECTION OF CIVILIANS

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In Libya in 2011, civilians in several areas became very unsafe because of the fighting and many were killed or injured. This harm was reportedly caused by all parties.[52]

Once an armed conflict starts, IHL places limits on the means and methods of waging war to protect those not participating (e.g. civilians) and no longer participating (e.g. wounded or captured combatants). Reflecting the non-pacifist nature of the international legal system, IHL does not prohibit violence outright, even violence affecting civilians. Rather, trade-offs formulated within IHL accept that wars will happen but place restraints on warring parties, balancing humanitarian protections with military necessity.[53] Concretely, although IHL prohibits direct and indiscriminate attacks against civilians, it accepts certain incidental harm, known colloquially as ‘collateral damage’ (during proportionate attacks on military objectives undertaken with sufficient precautions to avoid civilian harm).[54] Imagine, for example, an air strike targeting enemy forces which also kills a nearby civilian. This means that a civilian casualty in Libya in 2011 might or might not be a result of a violation of IHL depending on the circumstances. IHL is far less protective than the rules otherwise regulating force, such as during law enforcement operations by the police.[55]

IHL advocates argue in support of the vital restraints IHL places on warring parties and point out how beneficial increased compliance would be in protecting people during war; moreover, that IHL also does much good that goes unnoticed.[56]

Other commentators appear less enamoured with IHL. On the abstract level, one might accept some harm to bystanders as unavoidable and part of the ‘lesser evil’. Yet, many people would be unwilling to accept this if they were directly affected, and in practice, not all populations are subject to the same risks. Moreover, in the moment, it presumably matters little to a family whether the bombs they are fleeing were launched compliantly or not; and, in practice, investigations into such civilian harm allegations often struggle to pronounce definitively whether an attack was proportionate or not, or even to determine who is a civilian.[57] IHL’s acceptance that civilians can be lawfully (albeit incidentally) killed, even during operations intended to protect them, can therefore create an underlying uneasiness.

As such, some commentators consider IHL to have been formulated to privilege military necessity over humanitarian considerations.[58] Experience also shows that conflict parties have at times argued, especially related to counterterrorism, that existing rules were insufficient or inapplicable to the response needed for an exceptional threat.[59] This is seen to risk a gradual loosening of the rules,[60] particularly where an operation is for a ‘good cause’ and the underlying ‘fault’ for the violence is perceived to lie with the ‘terrorists’ or other ‘bad guys’.[61] Despite a stated purpose of protecting civilians, the aim might actually be to defeat the enemy, with increased risks for civilians.[62]

Stepping further back, when IHL was first codified in the 19th century, some hoped that rules restraining the means and methods of warfare could progressively lead to greater restrictions and ultimately the elimination of war. Others feared that such rules would operate to shift focus to the legal technicalities, postponing calls in peace activism for the abolition of war.[63] More recent UN ‘Women, Peace, and Security’ initiatives, which endorsed greater institutional participation of women in peace-building and were perhaps hoped by women’s networks to progressively transform militarism, have arguably resulted in a similar muffling of important feminist peace activism and critiques of militarism.[64] Relatedly, some argue that the denunciation of certain forms of violence as particularly problematic, such as the prosecution of war crimes, creates a boundary which normalises other forms of violence.[65]

To conclude, while the formulation of IHL fits within the logic of the current international legal system, and the humanitarian consequences of armed conflict would undoubtedly be less disastrous if warring parties complied more faithfully with IHL, more critical arguments that IHL might ultimately facilitate and legitimate rather than successfully restrain violence also hold some weight.[66] Eyal Weizman describes how some violence occurs with the ‘terrible force of the law’ rather than in violation of it.[67]

IV. INTERNATIONAL LAW OR VIOLENCE, INTERNATIONAL LAW AND VIOLENCE, INTERNATIONAL LAW AS VIOLENCE?

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The preceding discussion suggests that it becomes overly simplistic to say that law and war are of two different worlds – that in war, law falls silent or that the presence of violence alerts us to law’s failings.[68] More accurately, while different instances of violence may indeed be of a different nature or purpose, we can recognise the complex relationship(s) between international law and violence. They are not of two different worlds rubbing up against each other but are already ‘an old couple’.[69]

In practice, international law and violence are certainly interconnected since legal argumentation has become a key part of warfighting, often referred to as ‘lawfare’.[70] Concerning legal theory, scholars argue that if we could reach that utopia where peace and security were maintained, the law would lose its driving force; that violence helps establish or construct the law by giving it meaning and social relevance.[71] Part of the social relevance of violence to the law relates to an assumption that we cannot (yet) have both security and non-violence. Security and violence are understood as a natural and never-ending dilemma that needs to be reconciled by finding an appropriate balance, such that certain forms of violence remain a necessary evil.[72] Law works to define the boundaries/balance of what is perceived to be needed. Austin Sarat’s statement about law more generally seems to apply also to international law: law ‘is always violent but never only violent; always oriented towards justice but never fully just’.[73]

D. CONCLUSION

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Key instruments of international law, such as the UN Charter or the Geneva Conventions 1949, are commonly seen as significant milestones marking progressive achievement towards the ‘abandonment of the use of force’ and full disarmament.[74] As such, the basic design of collective security might be seen as the only ‘stable workhorse’ available, its imperfect functioning being primarily due to a lack of genuine willingness of States,[75] as well as to the realist view that certain actors need to be allowed to retain their arms in order to enforce the disarmament and defend themselves or others.[76]

Other thinkers appear less willing to sit in the ‘not yet’ of peace and justice, and view international law as having a more contested, even conspiratory, role in violence. Consider, for example, Dianne Otto’s question about ‘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.[77] In that dire description, current international law no longer appears as an aspirational vehicle for making the world a better place. Rather, the logic, practice, and demonstrated interests of the entire system are being critiqued and challenged.

The point is not only how challenging these questions are, but rather the resulting plurality of views on violence and international law. Different thinkers and actors will have different readings of a situation of violence, and different legal, political, and moral judgements and arguments in their application of international law. International legal argument might appear neutral or universal – for example, when an actor or institution claims to be acting objectively in the interests of humanity or for the common good – but the arguments being relied upon will be based on certain underlying assumptions about the world, about international law, and about particular authorities being able to make those determinations.[78] The values being prioritised are not necessarily held in common, and can also change over time and in different political contexts, or in hindsight. Describing international law as a conversation, David Kennedy says

[i]nternational law reminds us to pay attention to opinion elsewhere in the world, to think about consistency over time, to remember that what we do today may come back to haunt us . . . international law only rarely offers a definitive judgment on who is right.[79]

Regarding not only armed violence but most issues of interest to international law, international lawyers should, then, look closely and empathetically at the particular context, but also consciously and continually step back to reflect critically about the bigger picture.[80] Rather than only working out what, in one’s opinion, the law says, it becomes important to pay attention to narratives being used about any instance of violence, by whom, to serve what purpose, and with what political consequence. Moreover, who gets to decide? Critical reflection can also include considerations of ‘when, how, and at the behest of whom those rules have emerged and developed’.[81]

This final section, therefore, proposes questions which may help foster exploration of students’ individual legal, political, and moral positions around the complex and enduring relationships between violence and international law.

  • What language is being used in political or public dialogue to describe the violence or the parties involved? By whom? For what purpose?
  • What values are being expressed by a particular actor’s position? Is it being described as objective, universal, or in the common interest?
  • If the one who can define or decide what is legitimate and what is not is the one with true power,[82] who is deciding in the situation at hand?
  • Do the acts of violence reproduce any power dynamics that made those acts possible in the first place? In your view, ‘[i]s violence necessary at times, and if so, does it, or can it, put an end to further violence’ in the context at hand?[83]
  • In what ways has compliance with the law protected people from harm? Or put them at risk of harm?
  • In which situations could a non-violent option have been chosen, or in what situations were non-violent responses rejected or made impossible? What future paths do those decisions possibly close off? What might have been the imaginable results of other possible paths not taken or actively rejected?
  • Is ‘war talk’ used to frame a crisis, threat, or problem (e.g. war on drugs, fight against climate change)? To what effect?[84]

BOX 2.1.1 Further Readings and Further Resources

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Further Readings
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  • A Alexander, ‘The Ethics of Violence: Recent Literature on the Creation of the Contemporary Regime of Law and War’ (2021) Journal of Genocide Research 1
  • H Dexter, ‘Peace and Violence’ in Paul D Williams and Matt McDonald (eds), Security Studies: An Introduction (3rd edn, Routledge 2018)
  • D Kennedy, ‘Lawfare and Warfare’ in James Crawford and Martti Koskenniemi (eds), The Cambridge Companion to International Law (CUP 2012)
  • M Koskenniemi, ‘ “The Lady Doth Protest Too Much” Kosovo, and the Turn to Ethics in International Law’ (2002) 65(2) MLR 159
  • A Martineau, ‘Concerning Violence: A Post-Colonial Reading of the Debate on the Use of Force’ (2016) 29 LJIL 95
Further Resources
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  • Gavin Hood, ‘Eye in the Sky’ (Entertainment One 2015) (Film)
  • Olivier Sarbil, Mosul (PBS/Frontline 2017) (Documentary Series)
  • Brad Evans and others, Portraits of Violence: An Illustrated History of Radical Thinking (New Internationalist 2017)


Table of Contents

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Back to home page

Part I - History, Theory, and Methods

Part II - General International Law

Part III - Specialized Fields

Footnotes

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  1. ↑ Charter of the United Nations, 1945, 1 UNTS XVI (UN Charter) preamble.
  2. ↑ UN Charter, arts 2(3), 2(4). See also art 1(1). See also UNGA Res 3314 (XXIX) (14 December 1974), Annex: Definition of Aggression; Rome Statute of the International Criminal Court 2187 UNTS 3 (opened for signature 17 July 1998, entered into force 1 July 2002) (ICC Statute) art 8bis.
  3. ↑ See, for instance, Marc Weller, ‘Use of Force’ in Jacob Katz Cogan, Ian Hurd, and Ian Johnstone (eds), Oxford Handbook of International Organisations (OUP 2016) 625.
  4. ↑ See Svicevic, § 13, in this textbook.
  5. ↑ Hugo Slim, Killing Civilians: Method, Madness and Morality in War (Hurst 2007) 295.
  6. ↑ See discussion in Helen Dexter, ‘Peace and Violence’ in Paul D Williams and Matt McDonald, Security Studies: An Introduction (Vol 1, 3rd edn, Routledge 2018) 209.
  7. ↑ Anne Orford, International Authority and the Responsibility to Protect (CUP 2011) 212; MS Wallace, Security without Weapons: Rethinking Violence, Nonviolent Action, and Civilian Protection (Routledge 2017) 12–13; Noelle Crossley, ‘Is R2P Still Controversial? Continuity and Change in the Debate on ‘Humanitarian Intervention’ (2018) 31(5) Cambridge Review of International Affairs 415, 428.
  8. ↑ ICRC, War in Cities: Preventing and Addressing the Humanitarian Consequences for Civilians (ICRC 2023) 55.
  9. ↑ Johan Galtung, ‘Violence, Peace and Peace Research’ (1969) 6(3) Journal of Peace Research 167. See also Hilary Charlesworth’s discussion of ‘international law of everyday life’ compared to responding always to crises: ‘International Law: A Discipline of Crisis’ (2002) 65(3) Modern Law Review 377, 391–392. Note also the risk of violence as a concept becoming so broad as to become unworkable discussed in Dexter (n 13) 206–220, at 211. For a Marxist understanding of violence, see Bagchi, § 3.4.C., in this textbook.
  10. ↑ See Dienelt and Ullah, § 14, in this textbook.
  11. ↑ See e.g. Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field 75 UNTS 31 (opened for signature 12 August 1949, entered into force 21 October 1950) arts 3, 12, 18; Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea 75 UNTS 85 (opened for signature 12 August 1949, entered into force 21 October 1950) art 12; Convention (III) relative to the Treatment of Prisoners of War 75 UNTS 135 (opened for signature 12 August 1949, entered into force 21 October 1950) arts 13, 93; Convention (IV) relative to the Protection of Civilian Persons in Time of War 75 UNTS 287 (opened for signature 12 August 1949, entered into force 21 October 1950) art 27; Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts 1125 UNTS 3 (opened for signature 8 June 1977, entered into force 7 December 1978) (AP I) arts 17, 51, 75; Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts 1125 UNTS 609 (opened for signature 8 June 1977, entered into force 7 December 1978) arts 1(2), 4(2)(a) and 13(2); ICC Statute arts 7(1)(g), 8(2)(d), 8(2)(f), 36(8)(b), 42(9), 54(1)(b); Convention on the Rights of the Child (adopted 20 November 1989, entered into force 2 September 1990) 1577 UNTS 3 art 19(1).
  12. ↑ See AP I art 49; UN Charter art 51; UNGA Res 3314 (XXIX) (14 December 1974), Annex: Definition of Aggression.
  13. ↑ UN Charter preamble, arts 2(4), 42.
  14. ↑ Referred to as ‘negative’ and ‘positive’ peace: Galtung (n 9). For a good summary, see Dexter (n 13).
  15. ↑ Fen Osler Hampson, ‘Human Security’ in Paul D Williams and Matt McDonald (eds), Security Studies: An Introduction (2nd edn, Routledge 2014).
  16. ↑ For a timeline, see ‘Timeline of the Libyan Crisis/War (2011)’ in Dag Henriksen and Ann Karin Larssen (eds), Political Rationale and International Consequences of the War in Libya (OUP 2016).
  17. ↑ UNSC Res 1970 (26 February 2011).
  18. ↑ M Golovina and P Worsnip, ‘UN Okays Military Action on Libya; Gaddafi Warns’ (Reuters, 18 March 2011) <www.reuters.com/article/libya/wrapup-2-un-okays-military-action-on-libya-gaddafi-warnsidUSLDE72H00K20110318> accessed 20 June 2023.
  19. ↑ ‘Assault on Benghazi Would Endanger Masses of Libyan Civilians, Ban Warns’ (UN News, 16 March 2011 <https://news.un.org/en/story/2011/03/369182> accessed 20 June 2023.
  20. ↑ UNSC Res 1973 (17 March 2011) preamble, [4], [6].
  21. ↑ K Knipp, ‘Ten Years After NATO Intervention, Libya Remains Unstable’ (DeutscheWelle, 18 March 2021) <www.dw.com/en/libya-still-plagued-by-conflict-10-years-after-nato-intervention/a-56921306> accessed 20 June 2023; AL Jacobz, ‘Libya 10 Years After the NATO Intervention: U.N. Report Explains Challenges’ (Arab Gulf States Institute in Washington, 24 March 2021) <https://agsiw.org/libya-10-years-after-the-natointervention-u-n-report-explains-challenges/> accessed 20 June 2023; Soufan Center, ‘IntelBrief: Ten Years After NATO’s Intervention in Libya, a Transitional Government Takes Control’ (Soufan Center, 26 March 2021) <https://thesoufancenter.org/intelbrief-2021-march-26/> accessed 20 June 2023.
  22. ↑ International Crisis Group, ‘U.N. Plan to Reunite Libya: Four Obstacles’ (International Crisis Group, 4 May 2023) <www.crisisgroup.org/middle-east-north-africa/north-africa/libya/un-plan-reunite-libya-fourobstacles> accessed 20 June 2023; Report of the Independent Fact-Finding Mission on Libya, A/HRC/52/83 (3 March 2023).
  23. ↑ See e.g. Thomas G Weiss, ‘Libya, R2P, and the United Nations’ in Dag Henriksen and Ann Karin Larssen (eds), Political Rationale and International Consequences of the War in Libya (OUP 2016) 228; Sally Khalifa Isaac, ‘NATO’s Intervention in Libya: Assessment and Implications’ (2012) IEMed Mediterranean Yearbook 121–123.
  24. ↑ Anne Orford, ‘Moral Internationalism and the Responsibility to Protect’ (2013) 24 EJIL 83, 98. See also Pierre Thielbörger, ‘The Status and Future of International Law after the Libya Intervention’ (2012) 4(1) Goettingen Journal of International Law 11; Jessica Whyte, ‘The “Dangerous Concept of the Just War”: Decolonization,Wars of National Liberation, and the Additional Protocols to the Geneva Conventions’ (2018) 9(3) Humanity 313, 330–331; Sigmund Simonsen, ‘The Intervention in Libya in a Legal Perspective: R2P and International Law’ in Dag Henriksen and Ann Karin Larssen (eds), Political Rationale and International Consequences of the War in Libya (OUP 2016) 245, 249–251; Russell Buchan and Nicholas Tsagourias, Regulating the Use of Force in International Law: Stability and Change (Edward Elgar 2021) 213.
  25. ↑ 2005 World Summit Outcome, GA Res 60/1, UN Doc A/RES/60/1 (24 October 2005, adopted 16 September 2005) [138]–[139].
  26. ↑ Alex J Bellamy, ‘Libya and the Responsibility to Protect: The Exception and the Norm’ (2011) Ethics & International Affairs 1, 7.
  27. ↑ See Taylor B Seybolt, Humanitarian Military Intervention: The Conditions for Success and Failure (OUP 2008).
  28. ↑ See e.g. Michael Ignatieff, The Lesser Evil: Political Ethics in an Age of Terror (Princeton University Press 2005); but contrast also Eyal Weizman, The Least of All Possible Evils: A Short History of Humanitarian Violence (Verso 2017) 6.
  29. ↑ Wallace (n 14) 1 citing Human Rights Watch 2012. But see also discussion in Alan J Kuperman, ‘A Model Humanitarian Intervention?: Reassessing NATO’s Libya Campaign’ (2013) 38(1) International Security 105, 121–123.
  30. ↑ Patrick CR Terry, ‘The Libya Intervention (2011): Neither Lawful, Nor Successful’ (2015) 48(2) Comparative and International Law Journal of Southern Africa 162; Geir Ulfstein and Hege F.sund Christiansen, ‘The Legality of the NATO Bombing in Libya’ (2013) 62(1) ICLQ 159; Benedetta Berti, ‘Forcible Intervention in Libya: Revamping the “Politics of Human Protection”?’ (2014) 26(1) Global Change, Peace & Security 21, 37. In contrast, arguing the operations did not exceed the mandate, Chris De Cock, ‘Operation Unified Protector and the Protection of Civilians in Libya’ in MN Schmitt and L Arimatsu (eds), Yearbook of International Humanitarian Law (Vol 14, TMC Asser Press 2011) 213; ‘Libya Letter by Obama, Cameron and Sarkozy: Full Text’ (BBC News, 15 April 2011) <www.bbc.com/news/world-africa-13090646> accessed 20 June 2023.
  31. ↑ Independent International Commission on Kosovo, ‘The Kosovo Report’ (Oxford, 23 October 2000) 4 <http://www.kosovocommission.org> accessed 20 June 2023.
  32. ↑ See e.g. James Pattison, ‘The Ethics of Humanitarian Intervention in Libya’ (2011) 25(3) Ethics & International Affairs 271; Simonsen (n 31) 254–259; Berti (n 37).
  33. ↑ Wallace (n 14) 1; Kuperman (n 36) 125–133. See also generally, Alex J Bellamy, ‘The Responsibility to Protect’ in Paul D Williams and Matt McDonald (eds), Security Studies: An Introduction (2nd edn, Routledge 2014) 422, 432–433.
  34. ↑ Terry (n 37) 181; Ulfstein and Christiansen (n 37) 169–171. For other discussion regarding Libya and Syria, see Simonsen (n 31) 262–265; Spencer Zifcak, ‘The Responsibility to Protect After Libya and Syria’ (2012) 13(1) MJIL 59.
  35. ↑ Anne Orford, ‘Muscular Humanitarianism: Reading the Narratives of New Interventionism’ (1999) 10 EJIL 679.
  36. ↑ Iain Scobbie, ‘War’ in Jean d’Aspremont and Sahib Singh (eds), Concepts for International Law (Edward Elgar 2019) 900, 912: ‘[secure] some States’ freedom of action [while eroding] the prohibition of the use of force in the territory of another State’ (citations omitted). See also Thilo Marauhn, ‘How Many Deaths Can Article 2(4) UN Charter Die?’ in Lothar Brock and Hendrik Simon (eds), The Justification of War and International Order (OUP 2021) 449; Rajan Menon, The Conceit of Humanitarian Intervention (OUP 2016); Terry (n 37).
  37. ↑ See e.g. Pattison (n 39) 276; Martti Koskenniemi, ‘ “The Lady Doth Protest Too Much” Kosovo, and the Turn to Ethics in International Law’ (2002) 65(2) MLR 159, 172–173; Christine M Chinkin, ‘A “Good” or “Bad” War?’ (1999) 93(4) AJIL 841, 847. Regarding the deaths of some people being more ‘grievable’, and worth saving or defending, than others, see Judith Butler, Precarious Life: The Powers of Mourning and Violence (Verso 2004); Judith Butler, Frames of War: When Is Life Grievable? (Verso 2009). On the role of international law in these hierarchies, Thomas Gregory, ‘Potential Lives, Impossible Deaths’ (2012) 14(3) International Feminist Journal of Politics 327. But see also a contrasting discussion of selectivity/inconsistency in Alex J Bellamy, ‘The Responsibility to Protect Turns Ten’ (2015) 29(2) Ethics & International Affairs 161, 171–175.
  38. ↑ Darryl Li, ‘ “Afghan Arabs”, Real and Imagined’ (2011) 260 Middle East Report 2, 7.
  39. ↑ Anne Orford, ‘What Kind of Law Is This? Libya and International Law’ (London Review of Books, 29 March 2011) <https://www.lrb.co.uk/blog/2011/march/what-kind-of-law-is-this> accessed 6 December 2023.
  40. ↑ David Kennedy, ‘Lawfare and Warfare’ in James Crawford and Martti Koskenniemi (eds), The Cambridge Companion to International Law (CUP 2012) 177.
  41. ↑ See e.g. Katherine Fallah and Ntina Tzouvala ‘Deploying Race, Employing Force: “African Mercenaries” and the 2011 NATO Intervention in Libya’ (2021) 67(6) UCLA Law Review 1580; Anne-Charlotte Martineau, ‘Concerning Violence: A Post-Colonial Reading of the Debate on the Use of Force’ (2016) 29 LJIL 95; Parvathi Menon, ‘We’re (Not) Talkin’ Bout a Revolution: Anti-Colonial Struggles and Their (Un)justifications (Völkerrechtsblog, 1 June 2021) <https://voelkerrechtsblog.org/were-not-talkin-bout-a-revolution-anti-colonialstruggles-and-their-unjustifications/> accessed 20 June 2023. See also regarding IHL and the right to wage war, Claire Vergerio, War, States and International Order (CUP 2022) 259–261. See also Ananthavinayagan and Theilen, § 21.8, in this textbook.
  42. ↑ See e.g. BS Chimni, ‘Justification and Critique: Humanitarianism and Imperialism Over Time’ in Lothar Brock and Hendrik Simon (eds), The Justification of War and International Order (OUP 2021) 471, 485 and 487; Kuperman (n 36) 136. See also Koskenniemi (n 44) 174, discussing that if there is no longer room for neutral formalism because of a turn to ethics in legal argumentation, and while ethics is also politics, it might provide space at least for a good or better politics if it could involve a ‘culture of restraint, a commitment to listening to others’ (emphasis omitted).
  43. ↑ Wallace (n 14); Richard Jackson, ‘The Challenges of Pacifism and Nonviolence in the Twenty-First Century’ (2023) 1 Journal of Pacifism and Nonviolence 28, 30; Alexandre Christoyannopoulos, ‘Pacifism and Nonviolence: Discerning the Contours of an Emerging Multidisciplinary Research Agenda’ (2023) 1 Journal of Pacifism and Nonviolence 1; Helen Dexter, ‘Pacifism and the Problem of Protecting Others’ (2019) 56 International Politics 243; Jeremy Moses, ‘Anarchy, Pacifism and Realism: Building a Path to a Non-Violent International Law’ (2018) 6(2) Critical Studies on Security 221.
  44. ↑ S Lindahl, ‘A CTS Model of Counterterrorism’ (2017) 10(3) Critical Studies on Terrorism 523, 528–29. See also Wallace (n 14) 13, 25–27, arguing that the problem of disagreement about the ends requires us to derive legitimacy from the means we employ; Hannah Arendt, On Violence (Harcourt Brace Jovanovich 1970) 4: ‘the end is in danger of being overwhelmed by the means which it justifies and which are needed to reach it’.
  45. ↑ See e.g. Richard Jackson ‘CTS, Counterterrorism and Non-Violence’ (2017) 10(2) Critical Studies on Terrorism 357; MJ Stephan and E Chenoweth, ‘Why Civil Resistance Works: The Strategic Logic of Nonviolent Conflict’ (2008) 33(1) International Security 7–44; Wallace (n 14) ch 2.
  46. ↑ Bellamy (n 33) 427–429, 434–435.
  47. ↑ Christoyannopoulos (n 50) 11; J Ashley Foster, ‘Writing Was Her Fighting: Three Guineas as a Pacifist Response to Total War’ in Kathryn Stelmach Artuso (ed), Critical Insights: Virginia Woolf and 20th Century Women Writers (Salem Press 2014) 59; Richard Jackson, ‘Pacifism: The Anatomy of a Subjugated Knowledge’ (2018) 6(2) Critical Studies on Security 160, 167.
  48. ↑ Jackson (n 54) 166; Wallace (n 14).
  49. ↑ Jennifer Welsh, ‘Civilian Protection in Libya: Putting Coercion and Controversy Back into RtoP’ (2011) 25(3) Ethics & International Affairs 255, 261.
  50. ↑ Gina Heathcote, The Law on the Use of Force: A Feminist Analysis (Taylor & Francis 2011) 4, 29; Anne Orford, Reading Humanitarian Intervention: Human Rights and the Use of Force in International Law (CUP 2003) 15; Sundhya Pahuja, ‘ “Don’t Just Do Something, Stand There!” Humanitarian Intervention and the Drowning Stranger’ (2005) 5 Human Rights & Human Welfare 51, 52–53.
  51. ↑ Jackson (n 54) 169; Neta C Crawford, ‘The Critical Challenge of Pacifism and Nonviolent Resistance Then and Now’ (2023) 1 Journal of Pacifism and Nonviolence 140; Karen C Sokol, ‘East Meets West in Civil Disobedience Theory and Beyond’ in Giuliana Ziccardi Capaldo (ed), The Global Community Yearbook of International Law and Jurisprudence 2015 (OUP 2016) 125; Wallace (n 14) 253–254 regarding paying attention to the enemy other’s moral frameworks.
  52. ↑ Report of the International Commission of Inquiry on Libya, A/HRC/19/68, 8 March 2012, [87]–[89].
  53. ↑ See e.g. ICRC, ‘The Principles of Humanity and Necessity’ (March 2023) <www.icrc.org/sites/default/files/wysiwyg/war-and-law/02_humanity_and_necessity-0.pdf> accessed 20 June 2023. See also Uday Singh Mehta, ‘Gandhi and the Common Logic of War and Peace’ (2010) 30(1) Raritan 134, 147 on IHL providing moral constraint but accepting the logic braiding together war, peace, and politics.
  54. ↑ See Dienelt and Ullah, § 14, in this textbook.
  55. ↑ See ICRC, Violence and the Use of Force (ICRC July 2011).
  56. ↑ Helen Durham, ‘Atrocities in Conflict Mean We Need the Geneva Conventions More Than Ever’ (The Guardian, 5 April 2016) <www.theguardian.com/global-development/2016/apr/05/atrocities-in-conflictmean-we-need-the-geneva-conventions-more-than-ever> accessed 20 June 2023.
  57. ↑ Christiane Wilke, ‘Civilians, Combatants, and Histories of International Law’ (Critical Legal Thinking, 28 July 2014) <https://criticallegalthinking.com/2014/07/28/civilians-combatants-histories-international-law/> accessed 20 June 2023.
  58. ↑ Chris AF Jochnick and Roger Normand, ‘The Legitimation of Violence: A Critical History of the Laws of War’ (1994) 35(1) HILJ 49, 65, 68; Amanda Alexander, ‘A Short History of International Humanitarian Law’ (2015) 26(1) EJIL 109, 113.
  59. ↑ Michael Glennon, ‘Forging a Third Way to Fight; “Bush Doctrine” for Combating Terrorism Straddles Divide Between Crime and War’ (Legal Times, 24 September 2001) 68, discussed in Frédéric Mégret, ‘“War”? Legal Semantics and the Move to Violence’ (2002) 13(2) EJIL 361, 386.
  60. ↑ 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, 13.
  61. ↑ See e.g. ICRC (n 15) 45–47.
  62. ↑ Ibid 47.
  63. ↑ André Durand, ‘Gustave Moynier and the Peace Societies’ (1996) IRRC 314; Samuel Moyn, ‘From Antiwar to Antitorture Politics’ in Sarat and others (eds), Law and War (Stanford University Press 2014) 154; Samuel Moyn, Humane: How the United States Abandoned Peace and Reinvented War (Farrar, Strauss and Giroux 2021); David Kennedy, Of Law and War (Princeton University Press 2006); Marnie Lloydd, ‘ “A Few Not Too Troublesome Restrictions”: Humanitarianism, Solidarity, Anti-Militarism, Peace’ (Critical Legal Thinking, 22 November 2022) <https://criticallegalthinking.com/2022/11/22/a-few-not-too-troublesome-restrictions-humanitarianismsolidarity-anti-militarism-peace/> accessed 20 June 2023; Dianne Otto, ‘Rethinking “Peace” in International Law and Politics from a Queer Feminist Perspective’ (2020) 126 Feminist Review 19, 27–30.
  64. ↑ Dianne Otto, ‘Women, Peace, and Security: A Critical Analysis of the Security Council’s Vision’ in Fionnuala Ní Aoláin and others (eds), The Oxford Handbook of Gender and Conflict (OUP 2018); Sheri Gibbings, ‘Governing Women, Governing Security: Governmentality, Gender Mainstreaming and Women’s Activism at the UN’ (LLM Thesis, York University, Toronto 2004), 67–68.
  65. ↑ Alexander (n 67) 2; Heathcote (n 57) 22.
  66. ↑ See also Kennedy (n 47) 181.
  67. ↑ Eyal Weizman, ‘Legislative Attack’ (2010) 27(6) Theory, Culture & Society 11, 12.
  68. ↑ Kennedy (n 47) 158. See also Austin Sarat and Thomas Kearns, Law’s Violence (University of Michigan Press 1995) 2.
  69. ↑ 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.
  70. ↑ See e.g. Kennedy (n 47); Lawrence Douglas and others ‘Law and War: An Introduction’ in Sarat and others (eds), Law and War (Stanford University Press 2014) 3–4.
  71. ↑ Hamzić (n 76) 77; Ntina Tzouvala, ‘Eye in the Sky: Drones, the (Human) Ticking-Time Bomb Scenario and Law’s Inhumanity’ (Critical Legal Thinking, 19 April 2016) <https://criticallegalthinking.com/2016/04/19/eyesky-drones-human-ticking-time-bomb-scenario-laws-inhumanity/> accessed 20 June 2023.
  72. ↑ See also Mehta (n 60).
  73. ↑ Austin Sarat, ‘Situating Law Between the Realities of Violence and the Claims of Justice: An Introduction’ in Austin Sarat (ed), Violence, and the Possibility of Justice (Princeton University Press 2001) 13.
  74. ↑ Atlantic Charter between the United States and the United Kingdom 1941, final provision.
  75. ↑ Weller (n 10) 642–643.
  76. ↑ Ibid 629.
  77. ↑ Otto (n 70) 21.
  78. ↑ Jan Klabbers, International Law (CUP 2013), 3–4; Orford (n 14) 193.
  79. ↑ David Kennedy, The Dark Side of Virtue: Reassessing International Humanitarianism (Princeton University Press 2004), 273.
  80. ↑ Anne Orford, ‘The Politics of Collective Security’ (1996) 17(2) MJIL 373, 407–409.
  81. ↑ Helen M Kinsella and Giovanni Mantilla, ‘Contestation Before Compliance: History, Politics, and Power in International Humanitarian Law’ (2020) 64(3) ISQ 649, 653.
  82. ↑ Richard Devetak, ‘Post-Structuralism’ in Burchill and others (eds), Theories of International Relations (5th edn, Bloomsbury 2013) 194 citing Derrida.
  83. ↑ See discussion in Aisha Karim and Bruce B Lawrence, On Violence: A Reader (Duke University Press 2007) 78 citing Fanon.
  84. ↑ 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.
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