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Condoning the Use of Force: The UN Security Council as Interpreter of the Jus ad Bellum

  • Ian Johnstone (a1)
Extract

Monica Hakimi's article probes the legal significance of an interesting phenomenon: the UN Security Council condoning the use of force, as opposed to authorizing it. She offers an innovative perspective on this little-studied dimension of how the Council contributes to the development of jus ad bellum. While I applaud much in the article, I question her characterization of what the Council is condoning in the cases she reviews. She claims these are “fact-specific decisions,” whereas I argue that the Council is endorsing controversial interpretations of the law on the use of force. This disagreement does not detract from Hakimi's observations about the policy implications of the practice, or about the Council's role as a site for deliberation and argumentation about the content of international law. But it does cast doubt on her conceptual claim that there are two distinct “regulatory forms,” which together provide the content of jus ad bellum, one particularistic and procedural, the other general and substantive. All legal claims and justifications entail the application of general standards to particular facts, either explicitly or implicitly. Most of her case studies can be explained in those terms. Thus, while the Council's practice of condoning the use of force is important to understand, the “conventional account” she derides provides a more persuasive and parsimonious explanation of that phenomenon.

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This is an Open Access article, distributed under the terms of the Creative Commons Attribution licence (http://creativecommons.org/licenses/by/4.0/), which permits unrestricted re-use, distribution, and reproduction in any medium, provided the original work is properly cited.
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1 Monica Hakimi, The Jus ad Bellum 's Regulatory Form, 112 AJIL 151 (2018).

2 In this essay, I discuss Mali, Yemen, and Security Council Resolution 2249 on Syria. The Liberia case is harder to explain in those terms because the Council never referenced President Doe's consent to the intervention in its statements or resolutions. See Christine Gray, International Law and the Use of Force 401–02 (3d ed., 2008). I do not discuss the U.S. operation in Syria in 2017 because, as Hakimi rightly notes, the Council as a body never condoned those strikes.

3 Hakimi, supra note 1, at 164.

4 Stephen Krasner, Structural Causes and Regime Consequences: Regimes as Intervening Variables, in International Regimes (Stephen Krasner ed., 1983).

5 Hakimi, supra note 1, at 152.

6 Id. at 155.

8 On the difference between an excuse and justification, see Ian Johnstone, The Plea of Necessity in International Legal Discourse: Humanitarian Intervention and Counter-Terrorism, 43 Colum. J. Transnat'l L. 337 (2005).

9 Hakimi, supra note 1, at 167.

10 Id. at 158 (discussing states acting or reacting to concrete incidents). See generally Michael W. Reisman & Andrew Willard, Incident Analysis: The Law that Counts in World Politics (1988).

11 For the UK position, see UK Attorney-General Jeremy Wight, Attorney-General's Speech to the International Institute for Strategic Studies (Jan. 1, 2017). For the U.S. position, see The White House, Report on the Legal and Policy Framework Guiding the United States’ Use of Force and Related National Security Operations 9–11 (Dec. 2016).

12 Gregory Fox, Intervention by Invitation, in Oxford Handbook of the Law on the Use of Force (Marc Weller ed., 2015).

13 On the “unwilling or unable” standard, see Elena Chachko & Ashley Deeks, Who Is on Board with “Unwilling or Unable”?, Lawfare (Oct. 10, 2016). See also the contrasting positions of Michael P. Scharf, How the War Against ISIS Changed International Law, 48 Case W. Res. J. Int'l L. 16 (2016) and Jutta Brunée & Stephen Toope, Self-Defence Against Non-State Actors: Are Powerful States Willing but Unable to Change International Law?, 67 Int'l & Comp. L.Q. 263 (2017). On the legality of intervention at the request of a government in the context of a civil war, see Institut du Droit Internationale, The Principle of Non-Intervention in Civil Wars, art. 2(1) (1975); UK Materials on International Law, 57 Brit. Y.B. Int'l L. 616 (1986); Gray, supra note 2, at 92–105.

14 Hakimi, supra note 1, at 189.

15 UN Security Council Press Release, Security Council Press Statement on Mali, UN Doc. SC/10878 (Jan. 10, 2013). See also S.C. Res. 2100 pmbl. para. 5 (Apr. 25, 2013); Economic Community of West African States Press Release, Statement of the President of the ECOWAS Commission on the Situation in Mali, No. 006/2013 (Jan. 12, 2013).

16 Hakimi, supra note 1, at 175.

18 In Resolution 1368 (2001) on the September 11 attacks, the Council recognized the inherent right of self-defense in a preambular paragraph—an implicit interpretation of Article 51.

19 Int'l Law Comm'n, Report of the 68th Session, UN Doc. A/71/10 (2016) (Chapter V, Identification of Customary International Law).

21 Monica Hakimi, Constructing the International Community, 111 AJIL 317 (2017).

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