Reappraising the Resort to Force International Law, Jus ad Bellum and the War on Terror

by Moir, Lindsay

• ISBN13: 9781841136097
• ISBN10: 1841136093
• Format: Hardcover
• Copyright: 2010-01-31
• Publisher: Hart Publishing

Summary

A number of commentators assert that the military response to the terrorist atrocities of 11 September 2001 - encompassing attacks on Afghanistan and Iraq, and commonly referred to as the 'war on terror' - has significantly impacted upon the international law regulating resort to armed force by states (jus ad bellum), loosening the constraints on self-defence. Some even suggest that the very future of the United Nations, in particular the Security Council and its collective security system, is at risk - at least in its current form. This book does not address the question of the future of the United Nations, an issue probably best left to scholars of international relations. Instead, it seeks to place the 'war on terror' within the context of international law, assessing how, or whether, it can be accommodated within the existing legal framework limiting the use of force. Through an examination of the lawfulness (or otherwise) of both Operation Enduring Freedom and Operation Iraqi Freedom, including the legal justifications advanced by those states involved and the reaction of the international community, and involving a detailed discussion of the most important developments (ie, the permissibility of self-defence against non-state, terrorist, actors and the 'Bush doctrine' of pre-emptive self-defence against terrorists as proclaimed in the 2002 US National Security Strategy) the book determines whether, and to what extent, the right to use force - or the acceptability of such military action - is currently undergoing a radical transformation. By assessing subsequent developments illustrating the impact that military action against Afghanistan and Iraq has had on the jus ad bellum, this book represents a distinctive and original contribution to the academic literature.

Author Biography

Lindsay Moir is Professor of International Law at Hull University.

Table of Contents

Acknowledgements	p. vii
Foreword	p. ix
Table of Cases	p. xv
Table of Treaties and Other Instruments	p. xvii
Introduction	p. 1
General Legal Framework 1945-2001: The UN Charter Paradigm and the Jus ad Bellum	p. 5
The Prohibition of the Use of Force	p. 5
The Use of Force in Self-Defence	p. 10
Anticipatory Self-Defence	p. 12
The Definition of 'Armed Attack' and Self-Defence against Non-State Actors	p. 22
Security Council Authorisation	p. 31
Military Action Against Afghanistan, 2001: Operation Enduring Freedom	p. 41
Was there an Armed Attack on the United States?	p. 46
Was the Response Necessary?	p. 55
Was the Attack Over?	p. 55
Was the State of Afghanistan a Legitimate Target?	p. 59
Was the Response Proportionate?	p. 68
Military Action Against Iraq, 2003: Operation Iraqi Freedom	p. 73
Was the Action Taken in Self-Defence?	p. 75
Was the Action Authorised by the Security Council?	p. 83
Was Military Action Authorised by Resolution 1441?	p. 83
Was Military Action Authorised as a Lawful Response to the Violation of the Ceasefire Agreement?	p. 85
Reappraising the Resort to Force? Jus ad Bellum in the Post-9/11 World	p. 107
International Court of Justice Jurisprudence	p. 117
The Oil Platforms Case	p. 117
The Palestinian Wall Advisory Opinion	p. 131
The Armed Activities Case	p. 135
State Practice	p. 140
Israeli Military Operations in Lebanon and Syria	p. 140
Russian Military Operations in Georgia	p. 144
Ethiopian Military Operations in Somalia	p. 145
A Reappraisal	p. 147
Select Bibliography	p. 157
Index	p. 173
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