Public International Law/Nature and Purpose of International Law/International Law and Violence





Author: Marnie Lloydd Required knowledge:

None "Learning objectives: Acknowledging that international law seeks to prevent violence but also accepts and regulates certain forms of violence; introducing avenues for critical reflection about the complex relationship between violence and international law."

A. INTRODUCTION
A key aim of the international legal system is to protect future generations from the ‘scourge of war’. International law therefore requires States to settle their international disputes by peaceful means and outlaws aggression between them. Other rules place significant restraints on how wars may be fought; for example, not allowing civilians or hospitals to be targeted, to reduce war’s humanitarian consequences. Many students become interested in international law precisely because it is seen as an aspirational vehicle for ‘making the world a better place’.

Much has been achieved in suppressing the right to make war and restricting the means and methods of warfare. Still, aspirations for a peaceful and just world have not (yet) been achieved. Partly, armed violence occurs in violation of international legal norms – the illegal invasion of a sovereign State, a terrorist attack on a market square, attacks against a particular ethnic group. However, armed violence is also undertaken in compliance with international law. Specifically, self-defence and collective security measures adopted by the UN Security Council (UNSC) are accepted within the system as a way to counter insecurity. Thus, there are important exceptions to the general norm against using force. International law is not pacifist and its functioning as intended involves violence. Reflecting this, the preamble of the UN Charter sets out that ‘armed force shall not be used, save in the common interest’.

It may seem paradoxical that peace and security are sought through war and violence. Because violence can be oppressive but also potentially emancipatory, ‘[p]lacing limits around violence remains. . . one of the hardest challenges of the human condition’. So, who gets to decide what is in the ‘common interest’ and how armed violence might be used ‘in the right way and for the right reasons’? In their application of international law, different thinkers, actors, and traditions will have different readings of a situation and different legal, political, and moral judgements and arguments as to the values and interests to be prioritised. These priorities can change over time and context. The relevant norms and exceptions, and their application, are neither neutral or inevitable nor technical and universally agreed, but highly political and contested.

B. WHAT IS MEANT BY 'VIOLENCE'?
Exploring the relationship(s) between international law and violence is a potentially wide-ranging endeavour since there is no reason the term ‘violence’, and even more so ‘harm’, must be limited to armed force and its direct physical and psychological consequences. For example, the humanitarian consequences of armed conflict can also include knock-on effects such as displacement and the breakdown of essential infrastructure and services leading to increased sickness and death. Importantly, violence could also be thought of as structural, a less visible part of many people’s everyday experiences of discrimination leading to injustice, exploitation or exclusion, economic or political inequalities, or activities that degrade the environment. Moreover, such issues can contribute to conflict and outbreaks of violence.

Nevertheless, this chapter focuses on organised physical violence during armed conflict and discusses international law related to the use of force and the UN Charter (i.e. rules on starting or joining hostilities) and regulating those hostilities once they are underway (known as the law of armed conflict or international humanitarian law [IHL]).

Within that narrower focus, the term ‘violence’ is not defined in international law but does appear in certain international instruments, most commonly related to acts committed against individuals, including violence against women or children, and sexual and gender-based violence. Otherwise, acts of violence are often described through offences such as murder, extermination, torture, enforced disappearance, and bodily or mental harm, or through terms that have been defined or have developed specific meanings, such as ‘attack’, ‘armed attack’, and ‘aggression’. Other language is broader, such as ‘the scourge of war’, ‘use of force’, ‘armed force’, and ‘threat to international peace and security’, referred to in the United Nations Charter.

If ‘violence’ is hard to define, ‘war’, ‘peace’, and ‘security’ can be even more difficult. ‘Peace’ sometimes refers to the absence of war, and sometimes to a more expansive idea including also the achievement of social justice. ‘Security’ often refers to State security but, like ‘peace’, has more recently also been thought of within the broader idea of ‘human security’. Reflecting this, the UN Charter preamble expresses concern not only with international peace and security but human rights and social justice.

I. THE EXAMPLE OF THE MILITARY INTERVENTION IN LIBYA 2011
In February 2011, anti-government demonstrations started in the north-eastern city of Benghazi before spreading to other parts of Libya. Libya’s leader, Colonel Muammar al-Qadhafi, responded with military force against dissenters. Helped by some defections from the military, anti-government forces managed to take control of certain areas of eastern Libya. The situation escalated into an armed conflict between opposition forces and forces loyal to the al-Qadhafi regime.

The UNSC quickly demanded an end to the violence, referred the situation to the International Criminal Court, and imposed an arms embargo and other sanctions on members of the Libyan regime.

With the hostilities approaching the opposition stronghold, Benghazi, which the regime had reportedly threatened to attack with ‘no mercy’, the UN Secretary-General expressed concern about the endangering of civilians should an assault on Benghazi occur. Adopting Resolution 1973 on 17 March 2011, the UNSC reaffirmed its ‘strong commitment to the sovereignty, independence, territorial integrity and national unity’ of Libya. It also imposed a no-fly zone and authorised States ‘to take all necessary measures. . . to protect civilians and civilian populated areas under threat of attack’ in Libya. ‘All necessary measures’ is a phrase used by the UNSC to include military force.

NATO member States rapidly initiated military operations on 19 March 2011. In addition to actions to protect civilians from the advancing Libyan government forces and to enforce the no-fly zone, those air operations subsequently directly supported the opposition forces. Intervention operations continued until October 2011, by which time al-Qadhafi had been killed, and a majority of States recognised the opposition National Transitional Council as Libya’s new interim government.

The years following the intervention proved difficult with deteriorating security and reignition of civil war between different Libyan factions in 2014, as well as a growing ISIS presence. Following a 2020 ceasefire agreement, political instability, human rights abuses, and other violations have continued.

II. CONTESTED NATURE OF ACHIEVING PEACE OR PROTECTION OF CIVILIANS THROUGH MILITARY FORCE
Does the Libya 2011 example provoke any particular gut reaction from you?

Some commentators applauded that the UNSC had been able to react promptly to a humanitarian crisis, and that States were willing to take action. This reflects how the promotion of fundamental freedoms and human rights, and the growing notion that mass atrocities within a State could threaten international peace and security, have strengthened the moral authority of arguments justifying armed responses to such threats as being in the common interest. This more expansionist view has, in turn, impacted on what might be described as a more restrictive and universal holding to norms respecting sovereignty and non-intervention. Indeed, Resolution 1973 was the first time that the UNSC had recognised and put into action the so-called responsibility to protect (R2P), which authorised military force as an exception to the general prohibition on the use of force between States for the purpose of protecting individuals at risk where the State in question was not meeting that responsibility. Accepting it might be an imperfect and rather ‘blunt instrument’ but perhaps the best we have in a bad situation, and/or that learning from previous experiences might help ensure future operations do more good than harm, many accept such interventions as the lesser evil because they are conducted in the hope of averting even greater suffering. Regarding Libya, for example, reports indicated that NATO bombing killed 72 civilians but averted a potentially far larger massacre in Benghazi.

Other commentators have expressed concern about the implementation and/or consequences of the intervention. Amongst criticisms is that the NATO intervention exceeded the UNSC’s authorisation in Resolution 1973 by actively supporting regime change, arguably turning the lawful intervention into an unlawful one. This might be compared with the earlier situation in Kosovo where NATO controversially undertook an air campaign against Yugoslavia in 1999 without UNSC authorisation, with the operation subsequently being labelled as ‘illegal’ since it was unauthorised but ‘legitimate’ under the circumstances. Relatedly, while not opposed to R2P, some commentators have examined whether in the particular case of Libya, required legal and ethical thresholds to justify intervention such as last resort, sufficiently serious situation, or purpose, were met. The instability and civil war in the years following the Libya intervention, as well as an argument that NATO operations gave cover to violations committed by anti-regime forces, also led to critiques about ill judgement, the intervention worsening the situation, or, at least, that the international community inadequately supported Libya post-conflict. Those same reasons contributed to arguments that the ‘disaster’ of Libya made it unlikely that similar humanitarian actions would be adopted in the future.

Arguments about ‘mission creep’ were also made by those voicing a broader wariness of military operations undertaken for humanitarian and protective purposes. There is concern, including for many developing States, about seemingly expanding powers of such ‘muscular humanitarianism’ and the risks of exploitation by militarily powerful States. Commentators have noted the discretion and selectivity in responses to situations considered crises. For some, claims that norms justifying military action are universal ring rather hollow given the ‘lopsided global arrangements in which some forms of suffering are recognized while a great many more are not’. This has led to accusations of Western leadership using international law ‘to target its enemies while protecting its friends’. As David Kennedy has expressed, "one must imagine that claims to make war in the name of right will rarely sound sincere or seem persuasive to those who believe the truth lies elsewhere – who oppose the war, are disgusted by the tactic, or simply expect themselves to be maimed or killed."Relatedly, critical scholarship has pointed out how race, gender, and class continue to be implicated in the legal justifications made for intervention, replicating historical experiences of domination of the so-called Global South in the application of international law, including to curb emancipatory struggles. While not always ruling out the need for military action in exceptional circumstances involving intentional attacks against civilians, some call for prudence and an overwhelming consensus of the international community before the resort to force.

Finally, approaches based in pacifism or non-violence have long accompanied the development of international law and are seeing renewed interest. For some, what is important is that the means used to counter ills such as insecurity or terrorism are ‘consistent with the changes we wish to bring about’. On a practical level, some researchers argue that violent methods have been overused and have largely failed (e.g. to counter terror) while non-violent strategies have proven more successful. Even those supporting R2P have reinforced the importance of preventing violence in preference to military responses once a crisis breaks out.

Once in those crises, the dilemma often appears as one between action and inaction, where ‘doing something’ tends to be understood as a military response. Reflecting this, pacifist or non-violent philosophies have been labelled as overly idealistic and morally challenging, that remaining neutral or non-active implicates the acceptance of violence and might reinforce the dominant order. Yet, nonviolent approaches do not equate with doing nothing and might still persuade or even be coercive. Similarly, there is a vast range of different ways military operations to protect civilians could be undertaken. Limiting the options to either intervening militarily or standing idly by arguably blinkers us to other possible responses, as well as to a situation’s historical and political context; for example, understanding better how the earlier involvement of other States and international institutions might have contributed to the situation at hand. Some thus believe pacifist and non-violent approaches can open up spaces for alternative discussions, destabilising assumptions about militarism, and might have potential for being more global and inclusive than the current international system.

III. CONTESTED NATURE OF CIVILIAN CASUALTIES DURING THE PROTECTION OF CIVILIANS
In Libya in 2011, civilians in several areas became very unsafe because of the fighting and many were killed or injured. This harm was reportedly caused by all parties.

Once an armed conflict starts, IHL places limits on the means and methods of waging war to protect those not participating (e.g. civilians) and no longer participating (e.g. wounded or captured combatants). Reflecting the non-pacifist nature of the international legal system, IHL does not prohibit violence outright, even violence affecting civilians. Rather, trade-offs formulated within IHL accept that wars will happen but place restraints on warring parties, balancing humanitarian protections with military necessity. Concretely, although IHL prohibits direct and indiscriminate attacks against civilians, it accepts certain incidental harm, known colloquially as ‘collateral damage’ (during proportionate attacks on military objectives undertaken with sufficient precautions to avoid civilian harm). Imagine, for example, an air strike targeting enemy forces which also kills a nearby civilian. This means that a civilian casualty in Libya in 2011 might or might not be a result of a violation of IHL depending on the circumstances. IHL is far less protective than the rules otherwise regulating force, such as during law enforcement operations by the police.

IHL advocates argue in support of the vital restraints IHL places on warring parties and point out how beneficial increased compliance would be in protecting people during war; moreover, that IHL also does much good that goes unnoticed.

Other commentators appear less enamoured with IHL. On the abstract level, one might accept some harm to bystanders as unavoidable and part of the ‘lesser evil’. Yet, many people would be unwilling to accept this if they were directly affected, and in practice, not all populations are subject to the same risks. Moreover, in the moment, it presumably matters little to a family whether the bombs they are fleeing were launched compliantly or not; and, in practice, investigations into such civilian harm allegations often struggle to pronounce definitively whether an attack was proportionate or not, or even to determine who is a civilian. IHL’s acceptance that civilians can be lawfully (albeit incidentally) killed, even during operations intended to protect them, can therefore create an underlying uneasiness.

As such, some commentators consider IHL to have been formulated to privilege military necessity over humanitarian considerations. Experience also shows that conflict parties have at times argued, especially related to counterterrorism, that existing rules were insufficient or inapplicable to the response needed for an exceptional threat. This is seen to risk a gradual loosening of the rules, particularly where an operation is for a ‘good cause’ and the underlying ‘fault’ for the violence is perceived to lie with the ‘terrorists’ or other ‘bad guys’. Despite a stated purpose of protecting civilians, the aim might actually be to defeat the enemy, with increased risks for civilians.

Stepping further back, when IHL was first codified in the 19th century, some hoped that rules restraining the means and methods of warfare could progressively lead to greater restrictions and ultimately the elimination of war. Others feared that such rules would operate to shift focus to the legal technicalities, postponing calls in peace activism for the abolition of war. More recent UN ‘Women, Peace, and Security’ initiatives, which endorsed greater institutional participation of women in peace-building and were perhaps hoped by women’s networks to progressively transform militarism, have arguably resulted in a similar muffling of important feminist peace activism and critiques of militarism. Relatedly, some argue that the denunciation of certain forms of violence as particularly problematic, such as the prosecution of war crimes, creates a boundary which normalises other forms of violence.

To conclude, while the formulation of IHL fits within the logic of the current international legal system, and the humanitarian consequences of armed conflict would undoubtedly be less disastrous if warring parties complied more faithfully with IHL, more critical arguments that IHL might ultimately facilitate and legitimate rather than successfully restrain violence also hold some weight. Eyal Weizman describes how some violence occurs with the ‘terrible force of the law’ rather than in violation of it.

IV. INTERNATIONAL LAW OR VIOLENCE, INTERNATIONAL LAW AND VIOLENCE, INTERNATIONAL LAW AS VIOLENCE?
The preceding discussion suggests that it becomes overly simplistic to say that law and war are of two different worlds – that in war, law falls silent or that the presence of violence alerts us to law’s failings. More accurately, while different instances of violence may indeed be of a different nature or purpose, we can recognise the complex relationship(s) between international law and violence. They are not of two different worlds rubbing up against each other but are already ‘an old couple’.

In practice, international law and violence are certainly interconnected since legal argumentation has become a key part of warfighting, often referred to as ‘lawfare’. Concerning legal theory, scholars argue that if we could reach that utopia where peace and security were maintained, the law would lose its driving force; that violence helps establish or construct the law by giving it meaning and social relevance. Part of the social relevance of violence to the law relates to an assumption that we cannot (yet) have both security and non-violence. Security and violence are understood as a natural and never-ending dilemma that needs to be reconciled by finding an appropriate balance, such that certain forms of violence remain a necessary evil. Law works to define the boundaries/balance of what is perceived to be needed. Austin Sarat’s statement about law more generally seems to apply also to international law: law ‘is always violent but never only violent; always oriented towards justice but never fully just’.

D. CONCLUSION
Key instruments of international law, such as the UN Charter or the Geneva Conventions 1949, are commonly seen as significant milestones marking progressive achievement towards the ‘abandonment of the use of force’ and full disarmament. As such, the basic design of collective security might be seen as the only ‘stable workhorse’ available, its imperfect functioning being primarily due to a lack of genuine willingness of States, as well as to the realist view that certain actors need to be allowed to retain their arms in order to enforce the disarmament and defend themselves or others.

Other thinkers appear less willing to sit in the ‘not yet’ of peace and justice, and view international law as having a more contested, even conspiratory, role in violence. Consider, for example, Dianne Otto’s question about ‘how law helps to reproduce the inevitability of the deadly, anthropocentric, imperial, neoliberal military-industrial-complex’ and ‘whether there remain any remnants of opportunity in law’ with which one might yet work if one wanted to imagine alternative notions of peace. In that dire description, current international law no longer appears as an aspirational vehicle for making the world a better place. Rather, the logic, practice, and demonstrated interests of the entire system are being critiqued and challenged.

The point is not only how challenging these questions are, but rather the resulting plurality of views on violence and international law. Different thinkers and actors will have different readings of a situation of violence, and different legal, political, and moral judgements and arguments in their application of international law. International legal argument might appear neutral or universal – for example, when an actor or institution claims to be acting objectively in the interests of humanity or for the common good – but the arguments being relied upon will be based on certain underlying assumptions about the world, about international law, and about particular authorities being able to make those determinations. The values being prioritised are not necessarily held in common, and can also change over time and in different political contexts, or in hindsight. Describing international law as a conversation, David Kennedy says"[i]nternational law reminds us to pay attention to opinion elsewhere in the world, to think about consistency over time, to remember that what we do today may come back to haunt us . . . international law only rarely offers a definitive judgment on who is right."Regarding not only armed violence but most issues of interest to international law, international lawyers should, then, look closely and empathetically at the particular context, but also consciously and continually step back to reflect critically about the bigger picture. Rather than only working out what, in one’s opinion, the law says, it becomes important to pay attention to narratives being used about any instance of violence, by whom, to serve what purpose, and with what political consequence. Moreover, who gets to decide? Critical reflection can also include considerations of ‘when, how, and at the behest of whom those rules have emerged and developed’.

This final section, therefore, proposes questions which may help foster exploration of students’ individual legal, political, and moral positions around the complex and enduring relationships between violence and international law.


 * What language is being used in political or public dialogue to describe the violence or the parties involved? By whom? For what purpose?
 * What values are being expressed by a particular actor’s position? Is it being described as objective, universal, or in the common interest?
 * If the one who can define or decide what is legitimate and what is not is the one with true power, who is deciding in the situation at hand?
 * Do the acts of violence reproduce any power dynamics that made those acts possible in the first place? In your view, ‘[i]s violence necessary at times, and if so, does it, or can it, put an end to further violence’ in the context at hand?
 * In what ways has compliance with the law protected people from harm? Or put them at risk of harm?
 * In which situations could a non-violent option have been chosen, or in what situations were non-violent responses rejected or made impossible? What future paths do those decisions possibly close off? What might have been the imaginable results of other possible paths not taken or actively rejected?
 * Is ‘war talk’ used to frame a crisis, threat, or problem (e.g. war on drugs, fight against climate change)? To what effect?

Further Readings

 * A Alexander, ‘The Ethics of Violence: Recent Literature on the Creation of the Contemporary Regime of Law and War’ (2021) Journal of Genocide Research 1


 * H Dexter, ‘Peace and Violence’ in Paul D Williams and Matt McDonald (eds), Security Studies: An Introduction (3rd edn, Routledge 2018)


 * D Kennedy, ‘Lawfare and Warfare’ in James Crawford and Martti Koskenniemi (eds), The Cambridge Companion to International Law (CUP 2012)


 * M Koskenniemi, ‘ “The Lady Doth Protest Too Much” Kosovo, and the Turn to Ethics in International Law’ (2002) 65(2) MLR 159


 * A Martineau, ‘Concerning Violence: A Post-Colonial Reading of the Debate on the Use of Force’ (2016) 29 LJIL 95

Further Resources

 * Gavin Hood, ‘Eye in the Sky’ (Entertainment One 2015) (Film)


 * Olivier Sarbil, Mosul (PBS/Frontline 2017) (Documentary Series)


 * Brad Evans and others, Portraits of Violence: An Illustrated History of Radical Thinking (New Internationalist 2017)