Legality and the use of force in international affairs

“War is a continuation of politics by other means”. This memorable dictum of Karl von Clausewitz (1780-1831) is generally upheld as an example of realism. Accordingly, we just have to accept it as a fact of life that nations are prepared to go to war in pursuit of their interests.

Clausewitz did not advocate war nor did he condemn it. He merely looked on war as a phenomenon of human activity that is worthy of study. The evidence available to him was overwhelming: sovereign nations are prepared to use force to further their aims.

This view was echoed in modern times by Hans J. Morgenthau (1985), the leading post-World War II realist theorist: "All history shows that nation states active in international politics are continuously preparing for, actively involved in, or recovering from, organised violence in the form of war."

However, there is an important aspect of Clausewitz’s observation that can be overlooked if we do not go beyond the initial, stark reality of his powerful message. Clausewitz regarded war as a lawful exercise of power by a lawfully constituted body, “the sovereign state”. The stress on the lawful use of force was an important aspect of his observation.

Our actions are guided by our beliefs, and in turn, it is our understanding that shapes our beliefs. Therefore it is essential that, periodically, we critically re-examine our understanding of events. In this instance we ought to examine the dictum that “war is a continuation of politics by other means”. There is the danger that in our actions we merely follow a self-fulfilling prophecy, and involuntarily accept that, although war between nations may be postponed, ultimately it is inevitable. In particular we ought to look at our understanding of the legality surrounding war between states.

Even before Clousewitz’s book On War was posthumously published in 1832, there were subtle changes in the laws, which circumscribed the way nations conducted their international affairs. The Congress of Vienna (1815) was one of the earliest practical attempts after the Napoleonic wars to establish a framework for co-operation between countries. The Congress itself created the first inter governmental organisation (IGO), “The Central Commission for the Navigation of the Rhine”.

Other such organisations followed. The Superior Health Council (1838) was established to control the spread of cholera, - with an inspectorate in Constantinople (Istanbul). The International Telegraph Union (1865) was the first IGO that the USA joined.

The gradual evolution of IGOs in the 1800s was aided, and indeed necessitated, by the burgeoning scientific and industrial activities. All the IGOs were in fact an attempt to regulate the laws between nations for very practical reasons. There was an increasing awareness that certain issues simply cannot be resolved by force but only by co-operation.

After World War I there was a genuine desire to create a framework for co-operation, which would make it less likely for nations to resort to war in pursuit of their interest. The League of Nations was formed specifically for this purpose in 1920. Unfortunately, the omens were not very encouraging.

Although the Covenant of the League was incorporated into Part I of the Versailles Treaty (1919), the treaty's primary intent was to enforce punitive measures against Germany. The Covenant itself had several weaknesses, notably its inability to control the actions of those who were outside the League. For example, when the Japanese invasion of Manchuria in 1931 was condemned by the League, Japan simply left and carried on with its aggression.

After World War II, the most comprehensive set of international treaties, known as the Charter of the United Nations, was signed in San Francisco in April 1945. Its purpose was, as stated in the Preamble of the Charter, "... to save succeeding generations from the scourge of war....".

Unlike the Covenant of the League of Nations, the Charter of the UN was conceived in a spirit of generosity. The United Nations Organisation, that became better known in its abbreviated form as the UN, was set up to facilitate the implementation of the Charter. The organisation itself was beset with problems right from the start. These problems had their roots in the emerging stand off between the communist block and the rest of the world. The Charter itself remained the bedrock of international law.

It is in the light of this international law - the Charter of the United Nations - that we ought to examine some of the conflicts that have occurred since World War II and, in particular, the conflicts which involved the major powers who are, as Hans J. Morganthau implied, the most active in international politics.

Korean War

The first of these conflicts was the Korean War, which began in June 1950 when North Korea invaded South Korea. The Security Council of the UN, at the urgent insistence of the US, condemned the invasion and called upon members to repel the aggression. Forty-one countries sent equipment and supplies, though the bulk of the military force and supplies were given by the US.

This military action was in complete accordance with international law. The forces were given a clear mandate by the Security Council, although it is important to remember that the USSR boycotted the Security Council at the time. Also, it was the Nationalist Government in Taiwan and not mainland China that held the permanent membership status. When the USSR challenged the Security Council's decision to take military action against North Korea, the ruling of the International Court of Justice went against it.

The involvement of troops from mainland China made the resolution of the conflict more difficult. As mainland China was not a member of the UN, it was outside the UN's influence. It was not until October 1971 that the General Assembly decided "to restore all its rights to the People's Republic of China and to recognise the representatives of its Government as the only legitimate representatives of China to the UN ...".

Suez Crisis

After the nationalisation of the Suez Canal by Egypt, the ostensible reason for the British and French forces' occupation of the Suez Canal zone was to prevent the conflict between Israel and Egypt interfering with the right of passage along the Canal. Whether this was a genuine reason or not, the important point is that Britain and France acted without the mandate of the Security Council which, according to the Charter, is the only body recognised in international law that can authorise the use of force.

The military action was also in breach of Article 2(4) of the Charter, which states that, "All Members shall refrain ... from the threat or the use of force against ... any state ...". As it turned out, the General Assembly authorised the intervention of an international force to resolve the crisis. (The Security Council could not act, because two of its Permanent Members were party to the conflict.)

Cuban Missile Crisis

The next major challenge to international law occurred in 1962, when the Soviet Union tried to establish a ballistic missile base in Cuba. This was a threat of use of force against another Member of the UN, in breach of Article 2, paragraph 4 of the Charter.

The “Cuban Missile Crisis” placed two of the most powerful nations on a collision course. Although the Security Council could not be called upon to intervene, because both protagonists were Permanent Members with the ability to veto any proposals, the Kennedy administration went to great lengths to marshal all the legal backing not only of their natural allies, but nearly all the nations outside the communist block, including the Organisation of American States (OAS). This effort, combined with the restrained use of force, allowed the Soviet Union to disengage without a great loss of face.

Vietnam War

Probably the most tragic and, with hindsight, the most pointless conflict was the Vietnam War. The US became increasingly embroiled after 1965, when South Vietnam started to be more and more dependent on American support in their struggle with North Vietnam.

Outwardly, the conflict was similar to the North Koreans’ invasion of the South. However, unlike the Korean War, this time the US did not have the mandate from the United Nations. In fact during the entire duration of the conflict to 1973, when the US withdrew its last remaining ground troops, the question of Vietnam was never raised in the Security Council. Again, the power of veto simply did not allow the legality of the use of force to be tested.

It seems that there are two important points to consider if international law is disregarded when military force is used. It allows others to support those who are a victim of that breach of international law. It also deprives the nation who resorts to the internationally considered illegal use of force the “moral purpose” that is so crucial to sustain any struggle.

People have an innate and intuitive appreciation of what is right and what is wrong. If the exhortation of political leaders is contrary to this, it inevitably proves to be a disservice to the people they are supposed to inspire. In the case of Vietnam, the Soviet Union gave huge material support to the North. Also, the genuine motivation among the US military, and especially among the civilian population, simply could not be raised.

Afghanistan

In late 1979 and early 1980, Soviet troops entered Afghanistan in order to prop up the communist government of that country. Whether this was at the invitation of the government of Afghanistan or not, the action did not have the backing of the UN's mandate therefore, in terms of international law, it was illegal.

In many ways the USSR's involvement in Afghanistan was a mirror image of what happened in Vietnam; the roles of the two super powers simply being reversed.

The Soviet troops only controlled a limited number of “strategic” places. They tried to eliminate the Mujahidin's civilian support by bombing. The Mujahidin, the Muslim fighters opposed to the communist's rule, were supplied by the US with shoulder-held anti-aircraft missiles that effectively stopped the Soviet's use of helicopter gunships. The communist government of Afghanistan fell soon after the Soviet troops left in 1989.

The Gulf War

When Iraq invaded Kuwait in July 1990 it was not only a flagrant disregard of international law (Article 2, par.4), but it also had serious implications for the predictability of oil supplies to the industrialised world. Intense diplomatic efforts failed to persuade Iraq to withdraw its troops. Eventually, on January 15, 1991, a Coalition Force totalling some 795 000 troops, removed the Iraqi forces from Kuwait.

This military action was in complete accordance with international law. Security Council resolution 678 (November 29, 1990), authorised "... Member States co-operating with Kuwait ... to use all necessary means ... to restore international peace and security in the area ...". This resolution was supported by four of the permanent members as well as eight of the non-permanent members. Only Cuba and Yemen voted against while China, the fifth permanent member, abstained.

The Second Gulf War

In March 2003, the USA and Britain sent forces to Iraq. A number of other countries, such as Australia, Spain, Poland and Denmark also sent smaller contingents. The reason for the invasion of Iraq was ostensibly to prevent, or to get rid of, weapons of mass destruction that Saddam Hussein was reputed to have (although the UN inspectors were unable to discover any).

Although the government of the United Kingdom tried very hard to get a second resolution in the Security Council, the invasion by the occupying forces was unlawful, as it did not have a UN mandate. This fact allows other countries, covertly and indirectly, to come to the aid of those who are fighting the invaders.

Finally, returning to the original statement by Karl von Clausewitz that "war is a continuation of politics by other means", there are two serious reservations regarding his dictum. The first one relates to the development of nuclear weapons and other weapons of mass destruction. If war is a continuation of politics, or rather, a continuation of policies of a government by other means, than how can the unpredictable consequences of those weapons on all the combatants in a conflict be said to be compatible with a pursuit of a policy?

But even if we discount the possibility, that a modern, complex society (the emphasis is on all three of those words) would resort to the use of those weapons, there still remains the fact that, since Clausewitz made his famous observation, there has been an extra-ordinary increase in the extent and in the complexity of international treaties. As he was insistent on the lawful use of force, he would probably rephrase his famous dictum if he was writing now: "War is a continuation of politics by other means provided that the implications of international law are fully taken into consideration."

That international law is embodied in The Charter of the United Nations, which remains like a beacon that guides the deliberations of governments in their international affairs. Even though it is imperfect, if it is ignored, it can be both perilous and costly to even the most powerful nations.