Legality and the use of force in international affairs

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.