This article examines the legality of war. Its methodology consists in the examination of various legal sources mainly from the nineteenth century to the present day. The conventional law relating to the rules governing wars emerged at the end of the nineteenth century with the Hague conventions on the laws and customs of war of 1899. By those conventions, states undertook, inter alia, to regulate the conduct of warfare. In addition, the recourse to wars was restricted and the principle of pacific settlement of international disputes was asserted. Yet, wars neither stopped nor decreased and the world later experienced the two world wars.
Nowadays, it is widely believed that aggression and proxy wars are prohibited. The mainstream literature argues that such prohibition started after the First World War, especially with the Kellogg- Briand Pact. However, there is little discussion on the evolution of such prohibition. This work solves that issue. In addition, while since immemorial times many states have been engaged in civil wars, the legality of those wars has received little attention from the literature. This article fills such gap. It asserts that international armed conflicts are prohibited and that they are allowed in some circumstances. With regard to the civil wars, they are unlawful under domestic law and seem lawful under international law.
Abstract
This article examines the legality of war. Its methodology consists in the examination of various legal sources mainly from the nineteenth century to the present day. The conventional law relating to the rules governing wars emerged at the end of the nineteenth century with the Hague conventions on the laws and customs of war of 1899. By those conventions, states undertook, inter alia, to regulate the conduct of warfare. In addition, the recourse to wars was restricted and the principle of pacific settlement of international disputes was asserted. Yet, wars neither stopped nor decreased and the world later experienced the two world wars.
Nowadays, it is widely believed that aggression and proxy wars are prohibited. The mainstream literature argues that such prohibition started after the First World War, especially with the Kellogg- Briand Pact. However, there is little discussion on the evolution of such prohibition. This work solves that issue. In addition, while since immemorial times many states have been engaged in civil wars, the legality of those wars has received little attention from the literature. This article fills such gap. It asserts that international armed conflicts are prohibited and that they are allowed in some circumstances. With regard to the civil wars, they are unlawful under domestic law and seem lawful under international law.
Introduction
On 24 February 2022, Russia carried out a military intervention in Ukraine.1 This led to the condemnation of Russia by many countries and the United Nations General Assembly accusing it to launch a war of aggression against Ukraine and thus violate international law.2 However, Russia rejected such accusations and stated that its operation was allowed under international law.3 As a legal basis, it invoked the right of self-defence enshrined in the UN Charter.4
The purpose of this article is not to discuss about whether or not the Russian government was right. Its purpose is rather to examine rules of international law relating to the subject matter and determine whether or not a given war may be lawful.5 Nevertheless, the article does not confine itself to international armed conflicts. The article also discusses the legality of non-international armed conflicts and proxy wars in which states support rebels to fight against other states.6
1. International armed conflicts
1.1. Before the nineteenth century
Before the nineteenth century7, states were allowed to launch wars against other states and conquer them.8 In addition to fighting directly against existing governments of the states, they had also the right to intervene in wars occurring in other states and assist insurgents opposed against them. For instance, in 1830 France intervened militarily in the Netherlands to assist Belgium in its war of independence against the Netherlands.9
In the second half of the nineteenth century, wars of aggression continued to be lawful. However, at the end of that period, the recourse to military force became restricted. In the 1899 Hague conference, states concluded the Convention for the Pacific Settlement of International Disputes in which they undertook to prevent as far as possible the use of force in relations between states.10 In this regard, in case of dispute, states were required to first have recourse to the mediation, good offices and other mechanisms of the peaceful resolution of disputes before engaging in the military confrontation.11
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1 For more details, see DW, Russia's invasion of Ukraine (2022), at https://www.dw.com/en/russias-invasion-of-ukraine-2022/t-60931789, accessed on 12 March 2022.
2 See United Nations General Assembly Resolution on aggression against Ukraine, adopted by the General Assembly on 1 March 2022 at its Eleventh emergency special session, UN Doc. GA/ES-11/L.1, paras.2, 3, 7, 10. Hereinafter, the term “United Nations” is abbreviated as “UN”.
3 For more discussion, see BBC News, Ukraine conflict: What we know about the invasion, at https://www.bbc.com/news/world-europe-60504334, accessed on 12 March 2022.
4 Ibid.
5 Among authors who tried to work on the subject matter, see E. Decaux and O. de Frouville, Droit international public, 11e edition (Dalloz, 2018), p.477; P. M. Dupuy and Y. Kerbrat, Droit international public, 14e edition (Dalloz, 2018), p.631.
6 Non-international armed conflicts are also referred to as internal armed conflicts or civil wars. This work uses all of those terms in a similar way.
7 The nineteenth century was taken as a starting point because rules governing international armed conflicts started at that time. With regard to civil wars, this article discussed current legal sources. It did not consider as necessary examining legal sources since the nineteenth century as there has been no great change on the legality (or illegality) of such wars.
8 For more details, see F. Pernot, Histoire de la guerre, De l’Antiquité à demain (Ellipses, 2021).
9 C. Wiesse, Le droit international applique aux guerres civiles, Edition Francaise (B. Benda 1898), p. 88.
10 Convention for the Pacific Settlement of International Disputes of 1899, article 1.
11 Ibid, articles 2, 9 and 15.
- Arbeit zitieren
- Callixte Mbonigaba (Autor:in), 2022, The Legality of War, München, GRIN Verlag, https://www.grin.com/document/1223167
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