McNair Paper Number 33 Chapter 5, January 1995 (Continuation)
Self-Defense and War
One of the greatest dangers to peace is aggression under the political cloak of self-defense. The only legal route to the use of armed force on the initiative of individual states explicitly addressed by the Charter (in Article 51) is self-defense, and most military actions are justified as such. It permits states to assert the right of self-defense in response to armed attack until the Security Council decides upon the appropriate course of action for restoring the peace and the status quo ante.
But all force used in response to an armed attack cannot be characterized as self-defense. Sometimes the action constitutes self-help--that is, exploiting the aggressor's breach of the peace to use force to obtain objectives not required for defense of territory and rights--that can be a violation of Article 2 (3), a gray area. States with different interests will interpret the same situation differently. While it is reasonably easy in theory to separate the two functions, the passions of armed conflict and the issues giving rise to it often cloud the distinctions in practice. Consequently, there is a tendency for fighting to escalate quickly in its earliest stages and for the distinctions between the participants to become legally complex for third states (including Security Council members) trying to assess what action should be taken. Even when states are closely agreed on their objectives at the onset of a conflict, they can easily depart company as the end of the conflict approaches.
Justice should not be sacrificed in the interest of peace. If it is, the quality and value of the peace will be damaged and further injustice encouraged. All nations' interests are indirectly threatened when injustice or aggression is not confronted with resolve, but before this can happen, a consensus is need that extends well beyond the Permanent Members of the Security Council.
Given that armed conflict can erupt and expand in the absence of definitive action under the Charter by the Security Council, questions of neutrality or partiality become matters of individual state policy; the Law of War and Neutrality must then apply. Less than impartial actions are going to be perceived by the belligerents as violations of the law of neutrality and, perhaps more importantly, as interference with attainment of objectives the contending belligerents already have assessed as important enough to justify spending the blood of their young.
Before deciding upon partiality, states must recognize that their actions will be evaluated by belligerents who will make their own policy decisions regarding those partial actions. The dangers inherent in this situation worsen the longer a rupture of the peace persists. The major problem the United Nations has faced regarding international security issues has been the inability of the Permanent Members of the Security Council to agree on the categorizations of most breaches of the peace.
In fact, when the Axis and their nonbelligerent sympathizer Spain were excluded, the Charter was originally intended to be a military alliance. It was expected to deter aggression by placing the power of its members behind the principles it enshrined. Those expectations were not always fulfilled. As Professor Gross noted, "The members of the League and the members of the United Nations now seem to be moved to moral indignation only in selected cases, which deprives indignation of its moral basis."(Note 9)
The results of the League having followed this course are documented in blood, and although the ruptures have not been as cataclysmic, the U.N. experience is being written in the same hand. As long as violence continues as a policy option for states, neutrality will continue to play an important role:
In the absence of any action by the Security Council or the General Assembly or if the resolutions adopted by those bodies are silent, the members remain bound by the old law of neutrality, including, as to parties thereto, the conventions adopted at the Hague in 1907.(Note 10)
If Hague 1907 marks the state of the art in neutrality, impartiality is still the expectation. The neutrality regime concluded over eight decades ago still finds utility today, and, unfortunately, because war has not been effectively prevented, neutrality has not entered desuetude either.Return to Top | Return to Contents | Next Chapter | Previous Chapter