CHAPTER – 1

INTRODUCTION

Humanitarian intervention is characterized as "coercive measures by outside military strengths to

guarantee access to regular folks or the assurance of rights without the assent of local political
powers." The humanitarian intervention discussion is currently confined in connection to the
standard of the 'responsibility to protect' created by the International Commission on Intervention
and State Sovereignty (ICISS) and published in December 2001. The rule and routine of the
international community's 'responsibility to protect' is basic keeping in mind the end goal to save
individuals from butchered and mass killings when the sovereign state itself can't or unwilling to
do as such. Be that as it may, the international community is isolated on the issue of coercive
intercession with the end goal of human assurance in instances of mass killings and genocide.1

The law of war has always contained prohibitions and restrictions on methods and means of
combat, including the use of specific weapons (e.g. poison, the dum-dum bullet). Later on, states
have accepted limitations on their peacetime armaments as well. The recent law of arms control
and disarmament has provided a new perspective for that part of the law of war which deals with
methods and means of combat and the use of weapons in war2. The concept of humanitarian law
is confined to situations of armed conflict ('international humanitarian law applicable in armed
conflicts'), that is, situations of war in a material sense. But some authors use the concept of
humanitarian law in a still wider sense, to include human rights law, that is, law which is
essentially applicable in peacetime.

Humanitarian actors have not concerned themselves about the rights and wrongs of war in
essence (in legitimate terms, the ius ad bellum), but instead with the manner in which the wars
are fought, and how to moderate their impacts on regular citizens what's more, others not
straightforwardly occupied with battle (ius in bello). In many regards, The Global War On
Terrorism (or 'GWOT', as it has turned out to be known in a few quarters) is simply one more

1
Johannessen, A-M. “Humanitarian Intervention and the “Responsibility to protect” After September 11”. AM
Johannes.wikidot. Ed. AM Johannes. 3 July, 2008. wikidot. http://amjohannes.wikidot.com/humanitarian-
intervention-and-the-responsibility-to-protect.
2
Rosas, Allan, and Pär Stenbäck. “The Frontiers of International Humanitarian Law.” Journal of Peace Research,
vol. 24, no. 3, 1987, pp. 219–236. Jstor www.jstor.org/stable/424363.

1
war, or arrangement of wars, in which the battles are fought and won, administrations changed
and individuals murdered, injured and uprooted from their homes. In this sense, the
commitments of humanitarian actors have changed little since that critical September day, both
in the fundamental theatres of the worldwide war on fear mongering(from Afghanistan to Iraq to
Chechnya and Colombia), and on the fringe of the contention - in the Democratic Republic of
Congo and West Africa, for instance.3

The scope of humanitarian law has widened, its content has become more influenced by human
rights, peace, and disarmament considerations, and at the same time its frontiers have been
blurred. In consequence, the legal and conceptual situation has also become more bewildering.
To a certain extent this development has been inevitable. One cannot imagine humanitarian law,
dealing with highly sensitive issues such as collective violence and the status of the individual,
developing in isolation.4

3
Macrae and Harmer. “Humanitarian action and the ‘war on terror’: a review of issues”. Humanitarian Policy
Group. July 2003, https://www.odi.org/sites/odi.org.uk/files/odi-assets/publications-opinion-files/287.pdf.
4
Rosas, Allan, and Pär Stenbäck. “The Frontiers of International Humanitarian Law.” Journal of Peace Research,
vol. 24, no. 3, 1987, pp. 219–236. Jstor www.jstor.org/stable/424363.

2
 CHAPTER - 2

LITERATURE REVIEW

1. Foot, Rosemary. “The United Nations, Counter Terrorism, and Human Rights: Institutional
Adaptation and Embedded Ideas.” Human Rights Quarterly, vol. 29, no. 2, 2007, pp. 489–
514. Jstor, www.jstor.org/stable/20072807. Accessed on Nov 28, 2016 at 20:40.

2. KAPONYI, ELISABETH KARDOS. “UPHOLDING HUMAN RIGHTS IN THE FIGHT

AGAINST TERRORISM.” Society and Economy, vol. 29, no. 1, 2007, pp. 1–41. Jstor,
www.jstor.org/stable/41472069. Accessed on Nov 28, 2016 at 22:51.

3. Feldmann, Andreas E., and Maiju Perälä. “Reassessing the Causes of Nongovernmental
Terrorism in Latin America.” Latin American Politics and Society, vol. 46, no. 2, 2004, pp.
101–132. Jstor. www.jstor.org/stable/3177176. Accessed on Dec 1, 2016 at 22:46

RESEARCH QUESTIONS

1. What is the new geographical reality of the “Bush doctrine” and how its implications are
assessed for international law governing the resort by states to the threat or the use of
force (jus ad bellum)?

3
 CHAPTER-3

JUS AD BELLUM

Jus ad bellum can be defined as the rules regulating the resort to armed force. As long as war was
considered as "just another means of settling disputes," jus ad bellum was quite developed. With
the gradual prohibition of the resort to armed force, which culminated in the adoption of the UN
Charter, jus ad bellum became increasingly limited. As of today, it is limited in practice to self-
defence (Article 51 of the Charter) and collective security operations (Chapter VII of the
Charter).5 Articles 10-17 of the League of Nations Covenant are relevant for definition of the jus
ad bellum. Three general comments may serve to isolate the overall thrust of these Articles. First,
the emphasis on arbitration of international disputes is as pronounced here as it was weak in the
Hague Convention of 1899. The language of Articles 12 and 13 embraces, respectively, disputes
"likely to lead to a rupture" and any others "suitable for sub mission to arbitration or judicial
settlement" (the latter provision added in 1924). 6

International law has moved on the premise that competence de guerre as understood in the
nineteenth and early twentieth centuries must be denied. The confluence of contemporary legal
and theological doctrine on the jus ad bellum derives in large part from their common effort to
renounce what war had become by the beginning of this present century. And yet therein also
lies the weakness of these contemporary doctrines, which have become in effect a single doc
trine: in focusing too closely upon specific historic conditions, they have not adhered sufficiently
to the principles of justice contained in classic just war doctrine. 7

On September 11, the members of al-Qaeda, the international terrorists, carried out attacks on the
World Trade Centre in New York and on the Pentagon in Washington D.C.. These attacks killed
2,996 people and over 6,000 people were injured in the same, and caused approximately $10
billion in property and in infrastructural damage. The terrorists had hijacked four civilian air-
craft and flew them into these targets (with one aircraft crashing in Pennsylvania) killing all the

5
http://ezproxy.svkm.ac.in:2067/stable/pdf/25660071.pdf
6
http://ezproxy.svkm.ac.in:2067/stable/pdf/27902327.pdf
7
http://ezproxy.svkm.ac.in:2067/stable/pdf/27902327.pdf

4
passengers on the board and caused mass deaths and injuries to the civilians and massive
destruction of property.8

Before 9/11, a restrictive standard of attribution prevailed in international law, which largely
insulated states harbouring irregular forces from becoming subject to military responses at least
in theory. The global fight against terrorism, however, has strengthened the notion that
sovereignty entails responsibility for the effective control of one’s territory and that failure to
discharge this obligation legitimates a military response. The toppling of the Afghan Taliban,
which had neither directed nor controlled the perpetrators of 9/11, broke with traditional norms
for attributing private action to a state but was nonetheless greeted with widespread approval or
at least tacit acquiescence by the vast majority of states. Although the old rules governing the use
of force are thus clearly in flux, no new, full-fledged legal regime regulating the right to self-
defence in response to irregular warfare has yet to emerge. Post-9/11 state practice has been
described as “disrupted and confused,” and the conservative pronouncements of the International
Court of Justice (ICJ) on self-defence have further muddied already murky waters.9 The
underlying legal rationale of the U.S. response to the events of September 11 was made clear the
very night of the attacks. In a speech to the nation, President George W. Bush stated, "We will
make no distinction between the terrorists who committed these acts and those who harbour
them.”10

U.N. Security Council Resolution 1368 was adopted unanimously on the day following the
September 11th attacks, recognizing the "inherent right of individual or collective self-defence"
in its preamble. It also refers to its "readiness to take all necessary steps to respond" to the
attacks, and "to combat all forms of terrorism, in accordance with its responsibilities under the
Charter of the United Nations."11

Again on September 28, 2001, the Security Council, reacting to the events of September 11,
departed from its previous limited and cautious practice. Acting on a draft proposed by the
United States and explicitly referring to Chapter VII of the Charter, the Council adopted

8
Carter, Shan and Cox A. “One 9/11 tally: $3.3 Trillion.” The New York Times, September 8, 2011, p B2, InfoTrac
Newspapers, www.nytimes.com. Accessed on Nov 29, 2016 at 1:43.
9
http://ezproxy.svkm.ac.in:2067/stable/pdf/10.5305/amerjintelaw.105.2.0244.pdf
10
http://ezproxy.svkm.ac.in:2067/stable/pdf/3070687.pdf
11
http://ezproxy.svkm.ac.in:2067/stable/pdf/40707702.pdf

5
Resolution 1373 (2001), by which it decided in two operative paragraphs "that all States shall"
take certain actions against the financing of terrorist activities, as well as a miscellany of other
actions designed to prevent any support for terrorists and terrorist activities.' A further operative
paragraph "calls upon all States" to take certain additional actions.' Furthermore, the resolution
established a plenary committee of the Council (since referred to as the "Counter-Terrorism
Committee") to monitor implementation of the resolution and called on all states to report on
their compliance with it, initially within ninety days and there- after according to a timetable to
be proposed by the committee. In the past, as pointed out above, the Security Council has often
required states to take certain actions, such as to implement sanctions against a particular state or
to cooperate with an ad hoc tribunal,' but these requirements always related to a particular
situation or dispute and, even though not explicitly limited in time, would naturally expire when
the issue in question and all its con- sequences were resolved. By contrast, as Resolution 1373,
while inspired by the attacks of September 11, 2001, is not specifically related to these (though
they are mentioned in the pre- amble) and lacks any explicit or implicit time limitation, a
significant portion of the resolution can be said to establish new binding rules of international
law-rather than mere commands relating to a particular situation-and, moreover, even creates a
mechanism for monitoring compliance with them. Of particular interest are the provisions of
operative paragraph 1 of Resolution 1373, designed to cut off financing for terrorists. These are
clearly based on the International Convention for the Suppression of the Financing of Terrorism,
adopted by the General Assembly without a vote on December 9, 1999.12

The Challenge to Prior Understandings of Jus ad Bellum

Academic critics of the U.S. use of force have made numerous legal arguments. Although space
does not permit discussing them all, several hinge on the legitimacy of self-defence against
Afghanistan as a state in response to the actions of Al Qaeda there. These challenges raise
questions as to (1) the appropriate interpretation of the Charter, in particular the definition of an
"armed attack" in Article 51; (2) the requirements under customary international law of necessity
and proportionality in reactions of self-defence; and (3) the customary law of state responsibility,
in particular whether a state is liable for actions undertaken by those with a nexus to it, in this
case the planning of terrorist acts by non-state actors on its territory. Numerous decision makers

12
http://ezproxy.svkm.ac.in:2067/stable/pdf/3070686.pdf

6
in the international legal process have addressed these questions. On the first issue, the General
Assembly's 1974 Definition of Aggression, conceived as a guide to the Security Council in
carrying out its functions under the Charter, offers a list of activities by armed forces that
constitute aggression. Although the definition does not define "armed attack," it confirms
governmental understandings that aggression includes a variety of actions, from cross-border
attacks to attacks on naval ships, and then adds " the sending by or on behalf of a State of armed
bands, groups, irregulars or mercenaries, which carry out acts of armed force against another
State of such gravity as to amount to [the previously listed acts of aggression], or its substantial
involvement therein."

The International Court of Justice (ICJ) stated in Nicaragua v. United States13 that such sending
of armed bands amounts to an armed attack only if "because of its scale and effects" it would be
more than a "mere frontier incident" (or, as it later said, if it were "on a significant scale"), and
famously rejected the notion that mere assistance to rebels was an armed attack triggering the
right of self-defence. On the second issue, regarding necessity, the most frequently invoked
pronouncement is the exchange of diplomatic correspondence from the 1837 Caroline incident,
in which both the United States and the United Kingdom seemed to accept the idea that a state
asserting self-defence must demonstrate its "necessity ... [as] instant, overwhelming, and leaving
no choice of means, and no moment for deliberation." Scholars have already reached vastly
different conclusions about the application of the Caroline to September 11 or terrorist attack
generally.14

13
Nicaragua v United States, [1986] ICJ Rep 14
14
http://ezproxy.svkm.ac.in:2067/stable/pdf/3070687.pdf

7
 CHAPTER - 4

CRITICISM

By condemning first resort to force, it opens the way for aggression by means other than force:
economic manipulation, subversion, ideological "warfare" by propaganda, and so forth. It is not
at all clear that recent papal proscription of war for vindication or to recover something unjustly
taken is a morally or politically proper modification of classic just war doctrine. In the second
place, while all-out nuclear war remains an undertaking no one in his right mind wants to
embrace, the last twenty years have shown that conflicts can still be conducted with conventional
arms for limited ends without escalation to the nuclear level. Given the limited character of such
"modern" war as this, the judgment that war today must always produce more evil than good is
simply not true prima facie. This requires that we look further into the causes and effects of
actual and potential wars, and to do so re quires laying aside the condemnation of first use of
force per se. In the third place, the contemporary doctrine pays insufficient attention to the
criterion of right intention. As first stated by Augustine, this rules out cupidity, cruelty,
implacable animosity, a rebellious spirit, a wish to dominate, and the like. In its excessive
preoccupation with denying first resort to force, the contemporary doctrine on the jus ad bellum
has lost sight of what Augustine knew: that the moral quality of the use of force is determined by
the reason for its use.15

15
http://ezproxy.svkm.ac.in:2067/stable/pdf/27902327.pdf

8
 CHAPTER – 5

CONCLUSION

Identification does play an important role in IHL. But this takes the form of distinguishing
between the military and civilians. In practical terms, this translates into an obligation on the part
of the combatants to carry arms openly thereby ensuring that they do not shield behind civilians
or feign civilian status. To do so is tantamount to a serious breach of IHL for which participants
may be punished. But it is important to emphasise that failure on the part of the participant to
distinguish himself from civilians will not result in forfeiture of combatant status. Instead, such
participant will be punished for the manner in which he participated.16

It is submitted that this approach not only simplifies the concept of combatant status, but also
renders it more capable of implementation in the field. It also significantly reduced any
opportunities for auto-interpretation whereby one of the parties to a conflict can subjectively
label the opposing side as 'unlawful enemy combatants' thereby avoiding the safeguards and
obligations imposed by IHL. It is hoped that a proper understanding of the fundamentals of
combatant status will ensure that the mistakes arising from detention of the Gitmo detainees are
not repeated in the future.17

16
Cowling, Michael, and Shannon Bosch. “Combatant Status at Guantánamo Bay — International Humanitarian
Law Detained Incommunicado.” The Comparative and International Law Journal of Southern Africa, vol. 42, no. 1,
2009, pp. 1–35. Jstor, www.jstor.org/stable/23253212.
17
Ibid

9
 BIBLIOGRAPHY

LАW DАTАBАSE

• Mаnupаtrа

• SCC Online

• Indiаn kаnoon

• LexisNexis

JOURNАLS

 Ratner, Steven R. “Jus Ad Bellum and Jus in Bello after September 11.” The American
Journal of International Law, vol. 96, no. 4, 2002, pp. 905–921. Jstore
www.jstor.org/stable/3070687.
 Arai-Takahashi, Yutaka. “Shifting Boundaries of the Right of Self-Defence—Appraising
the Impact of the September 11 Attacks on Fus Ad Bellum.” The International Lawyer,
vol. 36, no. 4, 2002, pp. 1081–1102. Jstore www.jstor.org/stable/40707702. Szasz, Paul
C. “The Security Council Starts Legislating.” The American Journal of International
Law, vol. 96, no. 4, 2002, pp. 901–905. Jstore www.jstor.org/stable/3070686.
 Johannessen, A-M. “Humanitarian Intervention and the “Responsibility to protect” After
September 11”. AM Johannes.wikidot. Ed. AM Johannes. 3 July, 2008. wikidot.
http://amjohannes.wikidot.com/humanitarian-intervention-and-the-responsibility-to-
protect.
 Macrae and Harmer. “Humanitarian action and the ‘war on terror’: a review of issues”.
Humanitarian Policy Group. July 2003, https://www.odi.org/sites/odi.org.uk/files/odi-
assets/publications-opinion-files/287.pdf.
 Rosas, Allan, and Pär Stenbäck. “The Frontiers of International Humanitarian
Law.” Journal of Peace Research, vol. 24, no. 3, 1987, pp. 219–236. Jstor
www.jstor.org/stable/424363.

10